South v. United States
| Decision Date | 16 February 2023 |
| Docket Number | Criminal Action RDB-19-0055,CIVIL ACTION RDB-21-3008 |
| Parties | ORNETH PATRICK SOUTH, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Maryland |
On February 6, 2019, Petitioner Orneth Patrick South pleaded guilty to two counts of Robbery Affecting Interstate Commerce (“Hobbs Act Robbery”), in violation of 18 U.S.C § 1951(a), each carrying a maximum of 240 months' incarceration. (See Plea Ag't, ECF No. 4.) Pursuant to Fed. R. Crim. P. 11(c)(1)(C), this Court sentenced South to an agreed-upon sentence of 240 months' imprisonment. (Id. at 5.) On November 23, 2021 South submitted a pro se Motion to Vacate under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. (Pet'r's Mot. Vacate, ECF No. 16.) In support of the pending motion, Petitioner claims that he explicitly directed his attorney to file an appeal immediately after his sentencing due to outstanding concerns regarding enhancements that were used to calculate his offense level- and that his attorney failed to file an appeal as requested. (Id. at 7-8.) As it cannot presently be determined from the filings whether or not Petitioner in fact asked his former counsel to file an appeal, this Court shall hold an evidentiary hearing in order to determine the veracity of Petitioner's claim.
The facts of the underlying criminal case were stipulated in Petitioner's plea agreement and are not in dispute. (Plea Ag't, 10-11.) Petitioner's Hobbs Act Robbery charges arise from parallel investigations into two robberies of armored vehicles in Maryland and North Carolina. (Id.) On May 3, 2018, Petitioner was indicted alongside two co-defendants for the January 22, 2018, armed robbery of a Loomis armored car carrying $1,324,288.00, in violation of 18 U.S.C. § 1951(a). (Id. at 1, 10.) On July 18, 2018, he was indicted in the Western District of North Carolina for the February 9, 2015, armed robbery of a GardaWorld Security Corporation armored car, also in violation of 18 U.S.C. § 1951(a). (Id.) Pursuant to Fed. R. Crim. P. 20, Petitioner consented to the transfer of his North Carolina case to the District of Maryland, where it was docketed under criminal case number RDB-19-0055 and consolidated with his pending Maryland case. (Consent to Transfer, ECF No. 1.)
On February 6, 2019, pursuant to Fed. R. Crim. P. 11(c)(1)(C), South pleaded guilty to Count Two of each indictment, alleging Robbery Affecting Interstate Commerce in violation of 18 U.S.C. § 1951(a), with a statutory maximum of 240 months' incarceration for each count. (Plea Ag't ¶ 1.) On May 8, 2019, this Court sentenced South to an agreed sentence of 240 months' imprisonment on both counts, to run concurrently. (See generally Sentencing, ECF No. 11; see also Plea Ag't ¶ 9; Statement of Reasons 2, ECF No. 13.) Judgment was issued on May 10, 2019. (Judgment 2, ECF No. 12.)
On November 23, 2021, Petitioner filed the instant pro se Motion to Vacate pursuant to 28 U.S.C. § 2255 (ECF No. 16).[1] In his Motion and his subsequent Reply, Petitioner claims that he asked his attorney to file an appeal on the day of his sentencing, as believed that certain sentence enhancements used to determine an adjusted offense level of 31 were erroneous. (Pet'r's Mot. 7, ECF No. 16; see also Pet'r's Reply to Gov't's Resp. 2, ECF No. 26.) He contends that his attorney failed to comply with this request, depriving him of the opportunity to appeal. (Pet'r's Mot. 7.) In its Response, the Government contends that Petitioner's allegation is completely false, and argues that he should be denied relief without an evidentiary hearing. (Gov't's Resp. 5, ECF No. 25.) The record reflects that South signed his memorandum in support of his motion under oath and penalty of perjury, and that the Government adduced an affidavit from South's original attorney in support of its Response. (See Pet'r's Mot. 6; Banan Aff., ECF No. 24.)
This motion is now ripe for review.
This Court recognizes that Petitioner is pro se and has accorded his pleadings liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Under 28 U.S.C. § 2255, a prisoner in custody may move to vacate, set aside, or correct his sentence on four grounds: (1) “the sentence was imposed in violation of the Constitution or laws of the United States,” (2) “the court was without jurisdiction to impose the sentence,” (3) “the sentence was in excess of the maximum authorized by law,” or (4) “the sentence ‘is otherwise subjected to collateral attack.'” Hill v. United States, 368 U.S. 424, 426-27 (1962) (quoting 28 U.S.C. § 2255). “[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted a ‘fundamental defect which inherently results in a complete miscarriage of justice.'” United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill, 368 U.S. at 428).
The scope of a § 2255 collateral attack is far narrower than an appeal, and “a collateral challenge may not do service for an appeal.” United States v. Frady, 456 U.S. 152, 165 (1982). Thus, procedural default will bar consideration under § 2255 of any matters that “could have been but were not pursued on direct appeal, [unless] the movant show[s] cause and actual prejudice resulting from the errors of which he complains.” United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 2010).
A freestanding ineffective assistance of counsel claim may be properly asserted for the first time in a § 2255 motion. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). To establish a 28 U.S.C. § 2255 claim based on a Sixth Amendment claim of ineffective assistance of counsel, Petitioner must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984) which requires the petitioner to show (1) “that counsel's performance was deficient;” and (2) “that the deficient performance prejudiced the defnese.” 466 U.S. at 678; accord United States v. Rangel, 781 F.3d 736, 742 (4th Cir. 2015); Moore v. Hardee, 723 F.3d 488, 500 (4th Cir. 2013). The “performance” prong requires the petitioner to show that counsel's performance “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688; see also United States v. Roane, 378 F.3d 382, 404-05 (4th Cir. 2004) ( that “the standard of reasonableness is highly deferential” (quoting Kimmelman v. Morrison, 477 U.S. 365, 381 (1986))).
The “prejudice” prong requires the petitioner to show that counsel's errors deprived him of a fair trial. Strickland, 466 U.S. at 687; accord Mahdi v. Stirling, 20 F.4th 846, 894 (4th Cir. 2021) ().[2]
Implementing Strickland, the Supreme Court has held that an attorney's failure to file a notice of appeal at his client's explicit request constitutes ineffective assistance of counsel regardless of whether the appeal would have merit. In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court reviewed a district court's denial of a 28 U.S.C. § 2254 habeas petition alleging ineffective assistance of counsel based on an attorney's failure to file a notice of appeal at the petitioner's request. 528 U.S. at 474-75. Reversing, the Supreme Court emphasized its longstanding rule that “a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Id. at 477. As “a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice,” an attorney's failure to do so “reflects inattention to the defendant's wishes” and “cannot be considered a strategic decision.” Id. In considering the prejudice prong, the Court elaborated that the loss of an appeal amounts to a “serious denial of the entire judicial proceeding” that creates a presumption of prejudice. Id. at 483. Accordingly, “when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal.” Id. at 484.[3]
The framework developed in Flores-Ortega remains the standard for Sixth Amendment ineffective assistance of counsel claims predicated on counsel's failure to file a notice of appeal. See, e.g., Folkes v. Nelsen, 32 F.4th 258, 274 (4th Cir. 2022); Gordon v. Braxton, 780 F.3d 196, 200 (4th Cir. 2015); United States v. Cooper, 617 F.3d 307, 312 (4th Cir. 2010); Bostick v. Stevenson, 589 F.3d 160, 166 (4th Cir. 2009) (); United States v. Foster, 68 F.3d 86, 88 (4th Cir. 1995) (). Applying this standard, South asserts that he directed his attorney to file an appeal on the day of his sentencing, as he was concerned that his sentence was the result of erroneous sentence enhancements. (See Pet'r's Mot. 4-5; Pet'r's Reply 3.) Additionally, South certified his motion under penalty of perjury. (Pet'r's Mot. 6.) Accordingly, the instant motion qualifies as Petitioner's sworn affidavit. See, e.g., Goodman v. Diggs, 986 F.3d 493, 499 (4th Cir. 2021).
Acknowledging Flores-Ortega, the Government advances two arguments as to why this Court should deny Petitioner's pro...
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