Hodge v. U.S.

• Decision Date: 03 February 2009
• Docket Number: No. 08-1918.,08-1918.
• Citation: 554 F.3d 372
• Parties: Irvine HODGE, Jr., Appellant v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Third Circuit

554 F.3d 372

Irvine HODGE, Jr., Appellant v. UNITED STATES of America.

No. 08-1918.

United States Court of Appeals, Third Circuit.

Argued December 8, 2008.

Filed: February 3, 2009.

David R. Fine, [Argued], K & L Gates, Harrisburg, PA, Counsel for Appellant.

Nelson L. Jones, [Argued], Office of the United States Attorney, Charlotte Amalie, St. Thomas USVI, Counsel for Appellee.

Before: FISHER, JORDAN and STAPLETON, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Pursuant to identical plea agreements Irvine Hodge, Jr. and his brother Devin¹ were sentenced at the same proceeding to life imprisonment for the murder of a jewelry store owner on St. Thomas in the U.S. Virgin Islands. Devin's counsel timely appealed his client's sentence. Hodge's counsel, however, filed a litany of motions but never a notice of appeal. In an earlier decision, we vacated Devin's sentence because the government had breached its plea agreement by implicitly requesting a life sentence. United States v. Hodge, 412 F.3d 479 (3d Cir.2005). In the meantime, having lost the opportunity to directly appeal, Hodge moved for collateral relief under 28 U.S.C. § 2255 and argued, as his brother had, that the government had breached its plea agreement with him. The District Court denied Hodge's motion. For the reasons that follow, we will reverse the District Court's denial of Hodge's 2255 motion, vacate his sentence, and remand with instructions for the District Court to reenter the sentence so that Hodge has a second opportunity to file a direct appeal.

I. Background

In 1998, Hodge and his brother robbed a jewelry store and killed the store's owner. They were charged with first degree murder, in violation of 18 U.S.C. § 924(j)(1); interfering with commerce, in violation of 18 U.S.C. § 1951; and tampering with a witness by killing, in violation of 18 U.S.C. § 1512(a).

Hodge entered into a plea agreement with the government in April 2000. In exchange for his guilty plea to a charge of first degree murder and his promise to make restitution for the robbery, Hodge obtained from the government a promise to seek dismissal of the remaining charges, to recommend that the sentencing judge give him credit for accepting responsibility for the crime, and "to make no specific sentencing recommendation other than to request that the sentence be within the guideline range." (App. at 47-50.) As part of a "package deal," Devin signed an identical plea agreement. See Hodge, 412 F.3d at 480, 482. On May 2, 2000, the District Court of the Virgin Islands conducted a joint change-of-plea hearing for Hodge and Devin, at which the brothers were represented by separate counsel.²

The following month, Hodge and the government entered into a supplemental plea agreement. Under its terms, Hodge "agree[d] to provide truthful, complete, and accurate information and testimony" and to cooperate fully with an ongoing government investigation. (App. at 107-11.) The government, in turn, promised to "[m]ake the nature and extent of [Hodge's] cooperation known to the Court" and to "[m]ake a motion to allow the Court to depart from the Sentencing Guidelines," provided that Hodge had fulfilled the conditions of the deal. (App. at 111.) The government retained sole discretion to decide whether and to what degree Hodge had cooperated.

The District Court sentenced Hodge and Devin at a single proceeding on March 6, 2002. In response to Hodge's allocution, in which he expressed remorse for his crime, the prosecutor remarked:

[I]t always amazes me that once a person gets convicted and spends some time in jail, pending sentencing, two things happen. They usually find religion, and they usually find great remorse.... Whether the remorse is genuine or not, I leave for a higher power to determine. But at some point this defendant has to realize that there are grave consequences for your actions.

(App. at 156.) He then "ask[ed] the Court to fashion a sentence as fair and as just, and that sends a clear message: You may go out with the intention of [ ] committing a robbery, but if someone dies while you're committing that robbery, there are grave consequences to your actions." (App. at 157.) After Devin allocuted, the prosecutor made similar statements.³ The record does not indicate that the government made any mention to the Court of Hodge's cooperation, and the government did not file a motion to allow the Court to depart from the sentencing guidelines. Hodge and Devin each were sentenced to life imprisonment.

After announcing the sentences, the District Court instructed Hodge and Devin that they had ten days in which to file their notices of appeal. Devin timely filed his notice of appeal, and, as earlier noted, we vacated his sentence, holding that the government had breached the plea agreement by implicitly requesting a sentence of life imprisonment. Hodge, 412 F.3d at 487. On remand, the District Court resentenced Devin to a term of 450 months.

Unlike his brother, Hodge did not file a direct appeal. Instead, on March 11, 2002, his counsel filed a motion to correct Hodge's sentence pursuant to Fed. R.Crim.P. 35. That same day, the Court entered an amended judgment of sentence to correct certain clerical errors.⁴ On April 2, 2002, Hodge's counsel then filed what was styled as a "Motion to Have Conceded the Motion to Correct Sentence" and, eight months later, something he called an "Information Motion." In the Information Motion, Hodge's counsel noted:

That I am advised by Defendant that he recently sought, pro se, to have the Court appoint counsel for his appeal. However, Defendant was advised that no notice of appeal was filed.

Undersigned counsel is of the opinion that the post[-]trial motion[s] filed by Defendant on March 11, 2002 and April 2, 2002 are appropriate for an Order of the District Court before Defendant's timeliness for filing an appeal, if necessary, can be ascertained. Otherwise the Defendant is held in the procedural [l]imbo [in which] he now finds himself.

(App. at 193.)

On March 3, 2003, Hodge wrote to his attorney, expressing confusion as to why an appeal had never been filed in his case and asking counsel to "[d]o whatever needs to be done so that I can have a chance to `appeal' the life ... sentence I received on March 6, 2002." (App. at 195.) Attached to the letter was a notice that Hodge had received from this Court telling him that we could not consider a motion to file his appeal out of time because the District Court had to address such a motion in the first instance.

Hodge proceeded pro se to request the District Court to allow him to file a notice of appeal out of time, but the Court denied that request on December 31, 2003. On January 7, 2004, the District Court denied the "Motion to Have Conceded the Motion to Correct Sentence." The Court contemporaneously directed Hodge to notify it by February 16 whether he wanted to have his earlier motion to correct his sentence recharacterized as a motion for collateral relief under 28 U.S.C. § 2255.

On January 30, 2004, Hodge's counsel filed a document entitled "Post-Trial Motion for Correction of Error and Reconsideration," in which he wrote that, should the Court decline to reconsider its December 31, 2003 Order, Hodge wished to have the motion to correct his sentence recharacterized as a 2255 motion. Although the record is unclear, it seems that the Court must have denied the motion for reconsideration.

On March 1, Hodge's counsel timely filed a document in support of Hodge's 2255 motion, using a standardized form provided by the Court.⁵ In it, he argued, first, that the government had breached its plea agreement with Hodge by not advising the Court of the substantial assistance that Hodge had provided; and, second, that Hodge "was not advised that his right to appeal would terminate on April 24, 2002. That knowledge did not come until the District Court made its decision of December 31, 2003." (App. at 44.)

On August 16, 2005, Hodge, acting pro se, filed a "Motion to Submit Memorandum of Law in Support of § 2255 Petition" (the "Supplemental Memorandum"), in which he provided argument in support of his claims that the government had breached the plea agreement and that he was denied the right to appeal. Besides arguing that the government had failed to advise the Court of his cooperation, Hodge claimed, in keeping with our then-recently issued opinion in his brother's appeal, that the government had also breached its agreement by tacitly recommending that he receive a life sentence. Most importantly for this appeal, Hodge also argued that, "as a result of trial counsel's erroneous advice and deficient performance [, movant] was denied his due process right to a direct appeal." (App. at 210.) Specifically, he claimed:

[T]rial counsel promised ... he would file a prompt notice of appeal. However, contrary to his promise[,] trial counsel instead filed a Rule 35 Motion to Correct Sentence.... Counsel went on to inform [movant] that he did not have to worry about the time period in which to file his appeal because the clock would not begin to tick until the Court responded to the Motion to Correct Sentence.

(App. at 210.)

The Court denied Hodge's 2255 motion on September 19, 2007. Treating the Supplemental Memorandum as an attempt to amend that motion, the Court concluded that Hodge was trying to raise an ineffective assistance claim that was "new and distinct" from the right-to-appeal claim raised in the 2255 motion. Thus, the Court held, the ineffective assistance claim was untimely. It further held that all of the claims in the 2255 motion were procedurally defaulted because Hodge had not raised them on direct appeal and he could not establish actual innocence or cause for the default and consequent prejudice.

Hodge timely appealed the District Court's decision. On May 30, 2008, we issued a certificate of appealability on two issues: (1) whether the District Court erred in not...