Matthews v. U.S.

• Decision Date: 27 September 2007
• Docket Number: Civil No. 2:05-CV-339.,Criminal No. 2100-CR-213.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Dinarldo MATTHEWS, a/k/a "Kasheem Allah", Petitioner v. UNITED STATES of America, Respondent.

Page 827

514 F.Supp.2d 827

Dinarldo MATTHEWS, a/k/a "Kasheem Allah", Petitioner v. UNITED STATES of America, Respondent.

Criminal No. 2100-CR-213.

Civil No. 2:05-CV-339.

United States District Court, E.D. Virginia, Norfolk Division.

September 27, 2007.

Dinarldo Matthews, Otisville, NY, Pro se.

Kevin M. Comstock, Asst. United States Attorney, Norfolk, VA, for Respondent.

OPINION AND ORDER

ROBERT G. DOUMAR, District Judge.

Presently before the Court on remand from the United States Court of Appeals for the Fourth Circuit is the Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255, wherein Petitioner seeks habeas relief on the ground of ineffective assistance of counsel. Pursuant to and in accordance with the judgment and order of the Fourth Circuit, this Court held an evidentiary hearing on September 19, 2007, to determine whether Petitioner requested his attorney, Harry Harmon, to file an appeal subsequent to Petitioner's sentencing hearing on May 17, 2004. For the reasons discussed herein, the petition is DENIED.

I. FACTUAL AND PROCEDURAL HISTORY

On November 20, 2000, Petitioner and five co-conspirators were charged in a thirty-nine count sealed indictment stemming from a drug trafficking conspiracy. Petitioner was arrested on January 14, 2004, and the Court appointed Harry Dennis Harmon Jr. as Matthews's attorney on January 21, 2004. The United States subsequently moved to dismiss several of the counts against Petitioner, and on February 4, 2004, Petitioner pled guilty to Count One of the indictment, Conspiracy to Distribute and Possess with Intent to Distribute Heroin and Cocaine in violation of 21 U.S.C. § 846. In a written plea agreement Matthews explicitly waived his right to appeal the conviction and any sentence within the maximum provided for in the statute of conviction. At the February 4, 2004 guilty plea proceeding the Court conducted the colloquy as required by Rule 11 of the Federal Rules of Criminal Procedure. The Court explained to Matthews the consequences of executing the plea agreement, including the consequences of waiving his right to appeal:

THE COURT: Now, everyone has a right to appeal any sentence this court imposes. Your plea agreement contains a provision whereby you waive your right to appeal. That means you just don't have a right to appeal any sentence this court imposes. But you still have a right to appeal should I — should the sentence exceed the maximum allowed by statute. In this case it's life. I don't know how it could exceed it, but should it exceed it you would have a right to appeal; however, you have waived that right to appeal .... And I want you to understand what's contained in the plea agreement, that you have waived your right to appeal while the government claims it has a right to appeal.

Tr. of Guilty Plea Proceedings (2/4/04) at 18 (emphasis added). Having satisfied itself that Matthews knowingly and voluntarily entered into the plea agreement and the plea of guilty, the Court accepted the guilty plea and found the Petitioner guilty as to count one of the indictment. Matthews's attorney filed numerous objections to the pre-sentence investigation report, many of which were sustained by the Court, and succeeded in substantially reducing the sentence proposed by the Probation Officer. On May 17, 2004, the Court sentenced Matthews to 225 months imprisonment and five (5) years of supervised release. At the conclusion of the sentencing hearing, the Court again advised Matthews of his right to appeal:

THE COURT: You have a right to appeal, Mr. Matthews. If you desire to appeal, your appeal must be in writing and filed within 10 days from the date hereof. [Your attorney] has joined the petition that is the plea agreement, and so have you, and in your plea agreement you waived your right to appeal; however, that doesn't mean you can't appeal. You have a right to appeal if the sentence imposed is greater than the statutory maximum. And although you have waived your right to appeal I will — [your attorney] is in a catch 22 situation. That is, he has agreed that, according to the plea agreement, that he would not appeal, and you have agreed not to appeal; however, you have a right to appeal, so if you want to appeal I'll ask you right now, do you desire to appeal the sentence that has been imposed in this case? I'm happy to instruct the clerk to file a notice of appeal for you. Do you understand your rights?

THE DEFENDANT: Yes, I do.

THE COURT: Do you desire to appeal?

THE DEFENDANT: No, sir.

Tr. of Sentencing Proceedings (5/17/04) at 23-24.

On May 13, 2005, just shy of a year after his sentencing, Petitioner filed a motion to vacate his May 17, 2004. sentence on the grounds that (1) his waiver of appeal was not knowing and intelligent and (2) his attorney rendered ineffective assistance of counsel by failing to appeal his sentence. Petitioner claims that immediately following the sentencing, during which he told the Court he did not want to appeal, and just before the U.S. Marshals handcuffed him, he instructed defense counsel to file an appeal. This Court denied Petitioner's § 2255 motion on June 13, 2005. The Court found that the waiver of appeal was both knowing and voluntary and, furthermore, that there was no basis for arguing that Matthews's attorney rendered ineffective assistance of counsel by not appealing the conviction. After examining the transcripts of the plea and sentencing hearings, the Court rejected Matthews's assertion that he asked defense counsel to appeal and ruled that even if Matthews had notified his attorney of his intent to appeal, the attorney's failure to note an appeal did not constitute ineffective assistance of counsel where the Petitioner had waived his right to appeal in the plea agreement and the Court had preserved the Petitioner's statutory right to appeal by offering to note an appeal at the sentencing hearing. Matthews appealed this Court's denial of his petition. The Government submitted the affidavit of Mr. Harmon, Matthews's counsel, who stated that Matthews never asked him to file an appeal. (Resp't Br. Ex. D, Oct. 31, 2006.) In its opinion of July 9, 2007, the Fourth Circuit reversed this Court and found that there was a genuine issue of material fact concerning whether Matthews was denied effective assistance of counsel. The Fourth Circuit remanded the case to this Court to hold an evidentiary hearing as to whether Petitioner had asked counsel to appeal.

The question of post-sentencing effective assistance of counsel where a defendant has waived his right to appeal is an interesting matter because there is little that a lawyer can do to aid his client after judgment is pronounced. The chief method of reducing a legal sentence subsequent to a pronouncement is by rendering "substantial assistance" to the Government, see Fed.R.Crim.P. 35, and the opportunity to do so is largely extinguished by the filing of an appeal. And yet, as a matter of law, the failure to note an appeal is ineffective assistance of counsel. Mr. Matthews faced a term of imprisonment of between 324 and 405 months, and his attorney's efforts were largely responsible for the actual sentence of 225 months. The Petitioner was fully aware that the only way of further reducing his sentence was by cooperating with the Government. As the Petitioner was told at sentencing after his eleven years in the heroin trade:

THE COURT: Your only chance of even improving this sentence, which I think is lenient in accordance with having read the presentence report, is to cooperate with the government. I'm sure Mr. Harmon has told you that. That way you possibly may be able to get your sentence reduced. But you ought to thank your lucky stars you had Mr. Harmon helping you.

Tr. of Sentencing Proceedings (5/17/04) at 21. It is also clear that the Petitioner is a clever and knowledgeable individual, demonstrated by his awareness of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), in his own testimony at this hearing. Moreover, Mr. Harmon, Matthews's attorney, attested to the Petitioner's research as to incarceration facilities at the sentencing hearing:

MR. HARMON: "[T]his is only because my client has done some thorough research as to what facilities would help him out, try to rehabilitate him. He would like the Court to recommend FCI Fairton in Fairton, New Jersey because of their programs they have."

Tr. of Sentencing Proceedings (5/17/04) at 21-22. The Court explained that the Bureau of Prisons and Petitioner's sentence would determine his place of incarceration and then went on to explain again:

THE COURT: Besides cooperating with the Government, there is one other way you can get your sentence reduced, and that is by the Bureau of Prisons making a motion to reduce your sentence. They have done it in one case I'm aware of in my time on the bench ...

Tr. of Sentencing Proceedings (5/17/04) at 23. Petitioner's knowledge and cleverness was noted by the Court at the time of sentencing:

THE COURT: You know, Mr. Matthews, the thing that comes out in this presentence report is your native intelligence and your ability to have progressed if you'd gone into a legitimate enterprise. This is what's so disturbing is that you would have succeeded no matter what you did There are not that many people that have that much intelligence. There are just not that many people that do. It's just a shame that you went down that road because you could have achieved so much in just the private sector without having to resort to that. And you've done a lot for a lot of people. It makes it a tough road to hoe in looking at it. However, you were involved in this trade to an extent, probably because of your intelligence, that's well-defined. It was a great operation from an economic standpoint, but from a social standpoint it was...