Miller v. U.S.

• Citation: 150 F.Supp.2d 871
• Decision Date: 14 May 2001
• Docket Number: No. 7:99-CV-52-H.,No. 7:97-CR-67-1-H.,7:97-CR-67-1-H.,7:99-CV-52-H.
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Oscar MILLER, Petitioner, v. UNITED STATES of America, Respondent.

150 F.Supp.2d 871

Oscar MILLER, Petitioner, v. UNITED STATES of America, Respondent.

No. 7:97-CR-67-1-H.

No. 7:99-CV-52-H.

United States District Court, E.D. North Carolina, Southern Division.

May 14, 2001.

Chris A. Cordes, Asst. Fed. Pub. Def., Raleigh, NC, for Defendant.

ORDER

HOWARD, District Judge.

This matter is before the court on the Memorandum and Recommendation ("M & R") of United States Magistrate Judge Louise W. Flanagan filed on November 2, 2000. In that M & R, Magistrate Judge Flanagan found, after an extensive hearing at which petitioner and respondent were both present, that petitioner has sustained his burden of demonstrating ineffective assistance of counsel for failure to note a requested appeal. Specifically, Magistrate Judge Flanagan found that petitioner, by a preponderance of the evidence, demonstrated he would have filed an appeal in the absence of counsel's deficient performance and was therefore prejudiced by counsel's ineffective assistance.

Upon full and careful review of the M & R and all available court documents, the court finds that the findings and conclusions of the magistrate judge are in all respects proper and in accordance with the law. The court specifically finds that a defendant has the right to be "consulted," meaning "advised about the advantages and disadvantages of taking an appeal," and that defense counsel should make "a reasonable effort to discover the defendant's wishes." Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 1035, 145 L.Ed.2d 985 (2000). Further, the court acknowledges that the United States Court of Appeals for the Fourth Circuit strongly suggests that substantive and detailed advice about appeal should be given after sentencing. United States v. Witherspoon, 231 F.3d 923 (4th Cir.2000). It is the finding of the court that from the time petitioner was sentenced, petitioner was not consulted about his rights on appeal nor did either of his attorneys take any action to discover petitioner's wishes concerning an appeal.

Accordingly, based on a thorough review of the record and the relevant case law, the court hereby adopts the M & R as its own. It is the finding of the court that, by a preponderance of the evidence, petitioner demonstrated he would have filed an appeal in the absence of counsel's deficient performance. It is, therefore, ORDERED that petitioner have 30 days from the filing of this order to file an appeal from his original sentence.

MEMORANDUM AND RECOMMENDATION

This matter came before the undersigned October 12, 2000 under Rule 8 of the Rules Governing Section 2255 Proceedings for an evidentiary hearing on petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner alleges ineffective assistance of counsel for former counsel's failure to note requested appeal.

At hearing, the court received testimony from the following persons: petitioner; Lewis Hall, a friend of petitioner's family; Cynthia Dixon, petitioner's sister; Hugh Miller, his cousin and associate minister of St. Matthews AME Zion Church; and Thomasine Moore and Calvin King, petitioner's former counsel. Petitioner was present at hearing and represented by Chris Cordes of the Federal Public Defender's Office. Fenita Shepard, Assistant United States Attorney, appeared on behalf of the government.

Based on the evidence presented, the court makes the following findings of fact, conclusions of law, and recommendation.

STATEMENT OF THE CASE

In Indictment returned August 26, 1997, petitioner was charged with two counts of distribution of cocaine base ("crack"), in violation of 21 U.S.C. § 841(a)(1). On January 20, 1998, pursuant to written plea agreement, petitioner pleaded guilty to count one of the Indictment. On April 27, 1998, petitioner was sentenced to a term of imprisonment of 240 months.

Petitioner filed motion to vacate, correct, or set aside his sentence pursuant to 28 U.S.C. § 2255 April 9, 1999. The motion alleges several grounds for relief including ineffective assistance of counsel based on counsel's failure to file requested appeal. In supporting affidavit, petitioner states under penalty of perjury "[t]hat I asked my Counsel [Ms. Moore] to file an appeal in my case, and that she told me she would, but she did not."

On May 10, 1999, respondent moved for summary judgment, supported by affidavit of Ms. Moore which omitted any testimony addressing events pertinent to appeal considerations. After petitioner responded to the motion by filing dated May 17, 1999, respondent submitted Ms. Moore's supplemental affidavit addressing petitioner's allegation that she failed to file requested appeal with comment that "[i]t appears that Ms. Thomasine Moore forgot to address the issue of whether a Notice of Appeal was filed on Mr. Miller's behalf when she submitted her affidavit." This affidavit, dated May 18, 1999, incorporates testimony that she advised petitioner he was entitled to an appeal, commented to him that success was not likely, and concludes in pertinent part that "Mr. Miller, thereafter, never requested that I file an appeal on his behalf."

On July 12, 1999, the District Court granted respondent's motion for summary judgment and dismissed petitioner's § 2255 claims. Petitioner appealed dismissal to the U.S. Court of Appeals for the Fourth Circuit ("Fourth Circuit"). On May 18, 2000, the Fourth Circuit dismissed the appeal in part and vacated and remanded in part, finding error in the granting of summary judgment in favor of respondent where the conflicting affidavits created a genuine issue of material fact as to whether petitioner asked counsel to note an appeal. On remand, the matter was referred by the District Court to the undersigned for evidentiary hearing.

Memoranda were received from both parties, as directed in order of this court dated July 31, 2000, and the matter set by this order to come before the court August 31, 2000. Hearing was continued until September 22, 2000, upon inadvertent delay of the government in securing petitioner's presence. At proceeding September 22, 2000, petitioner's counsel requested continuance to investigate potential witnesses and with consent of respondent, hearing was continued to October 12, 2000. On this date the court took evidence and heard argument of the parties. On October 26, 2000 respondent moved for leave to expand the record to include telephone records of certain of petitioner's witnesses, including Ms. Dixon and Mr. Hall. This motion was denied as set forth in separate order.

FINDINGS OF FACT

Petitioner was charged in Indictment filed August 26, 1997 with two counts of distribution of cocaine base ("crack"), in violation of 21 U.S.C. § 841(a)(1). Notice of appearance was filed September 22, 1997 by Michael G. Howell of the Federal Public Defender's Office on behalf of defendant. The Federal Public Defender was readying for trial when Ms. Moore contracted to represent petitioner together with Mr. King, pursuant to her testimony. Arraignment and trial originally were set for the November 10, 1997 term of court. According to testimony of Ms. Moore, petitioner's family retained her to represent petitioner October 2, 1997.¹

Immediately upon being hired, Ms. Moore associated Mr. King to assist her with the case. Notice of appearance on behalf of counsel was filed November 24, 1997. Reasons stated by Ms. Moore for the involvement of Mr. King included Ms. Moore's trial schedule and Mr. King's proximity to petitioner. In cross-examination, petitioner elicited testimony from Ms. Moore that her criminal experience in federal district court since entry into practice in 1975, has been minimal. In this case, Ms. Moore and Mr. King separately agreed to split evenly the $25,000.00 fee negotiated by Ms. Moore, due prior to any trial.

On or about October 6, 1997, both attorneys visited petitioner at the detention facility in Wilson where he signed the representation agreement. Ms. Moore and Mr. King visited petitioner on occasions thereafter, together and separately, to prepare and discuss his case. Arraignment and trial were continued several times, including upon motion of petitioner, with arraignment and trial finally set for January 20, 1998.

Petitioner initially determined not to plead guilty. His attorneys indicated a willingness to try the case; however, they counseled that the evidence against petitioner, including recorded drug transactions, was significant, and that it would be a difficult case to win. Ms. Moore acknowledged that it was difficult to impress these points upon petitioner. However, petitioner eventually determined to plead guilty.

On January 20, 1998, pursuant to written plea agreement, petitioner entered a plea of guilty to Count One of the Indictment before Hon. Malcolm J. Howard, U.S. District Judge presiding. The plea agreement contained a waiver of appeal rights provision in which petitioner agreed to:

waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, including any issues that relate to the establishment of the Guideline range, reserving only the right to appeal from a sentence of imprisonment for a period greater than 160 months ... The defendant acknowledges that the number of months specified above is an estimate from information known at present. It is not a promise and is not binding on the Court. The Defendant agrees that should the sentence imposed exceed 160 months, this would not affect the validity of the guilty plea, but merely would allow the Defendant to appeal the Guideline range.

Memo, of Plea Agreement, ¶ 2(c)(emphasis in original).

At hearing before the undersigned, petitioner demonstrated reading difficulty when shown a copy of the plea agreement. The agreement, including the clause reserving the right to appeal sentence longer than 160 months, was agreed to by Ms. Moore who testified initially that she negotiated the specific clause. She clarified...