U.S. v. Forsythe
| Decision Date | 21 November 1997 |
| Docket Number | No. 97-3221-RDR.,No. 95-40060-01.,95-40060-01.,97-3221-RDR. |
| Citation | 985 F.Supp. 1047 |
| Parties | UNITED STATES of America, Plaintiff, v. Steven A. FORSYTHE, Defendant. |
| Court | U.S. District Court — District of Kansas |
Steven A. Forsythe, Leavenworth, KS, pro se.
James G. Chappas, Jr., Topeka, KS, Donald R. Hoffman, Hoffman & Hoffman, Topeka, KS, for Donna J. Forsythe.
Donna J. Forsythe, Topeka, KS, pro se.
James E. Flory, Office of U.S. Attorney, Topeka, KS, for U.S.
This case is now before the court upon defendant's motion to vacate sentence pursuant to 28 U.S.C. § 2255.
Defendant was indicted with his ex-wife on charges of possession with intent to distribute crack cocaine and maintaining a crack house. In January 1996, defendant pleaded guilty to possession with intent to distribute crack cocaine. In return for his guilty plea the government promised: 1) to dismiss the charge alleging that he maintained a crack house; 2) to recommend that defendant receive a 3-level reduction in the offense level for acceptance of responsibility, contingent upon defendant's "continuing manifestation of acceptance of responsibility;" and 3) to file a § 5K1.1 motion asking for a downward departure to a sentence of 60 months if the government determined in its "sole discretion" that defendant provided substantial assistance. Defendant also agreed to withdraw all motions filed or pending and to forego filing motions regarding the legality of his arrest and the search of his residence.
Defendant testified for the government in the trial of defendant's ex-wife.1 Prior to being sentenced, on July 10, 1996 defendant's bond was revoked because he had been arrested and charged in state court with illegal possession of crack cocaine. Many months after the sentence in this case, the state charges were dismissed, apparently at the behest of federal drug enforcement officers.
Defendant has claimed that at the time of the arrest in July 1996 he was working with the government, providing "substantial assistance." The government does not deny that defendant worked with government agents and that his work benefitted the government. The government contends, however, that defendant disobeyed his instructions because he had unauthorized possession of crack cocaine and made unauthorized sales.
Defendant was sentenced to a term of 70 months which was at the low end of the guideline range. The court refused to give defendant credit for acceptance of responsibility because of his alleged subsequent criminal behavior. The government refused to file a § 5K1.1 motion for the same reason, in spite of defendant's trial testimony and other assistance. Following his sentence, defendant did not file a notice of appeal.
Defendant has made numerous arguments. His first argument is that he asked his counsel to appeal his sentence, but no appeal was filed. Evidence regarding this issue was taken during the hearing upon the instant motion. The court heard testimony from defendant and defendant's counsel at the sentencing proceeding. Defendant testified that he asked for an appeal to be filed and that he thought an appeal had been filed. Defendant's former counsel testified that he discussed an appeal with defendant, but told him there was very little basis for an appeal. According to defendant's former counsel, defendant did not ask him to file an appeal.
The failure to file an appeal after a client has asked to appeal is ineffective assistance of counsel regardless of whether the appeal would have had merit. Abels v. Kaiser, 913 F.2d 821, 823 (10th Cir.1990). The correct remedy in such a case is to resentence the defendant after vacating the original sentence under § 2255 so that an appeal can be properly perfected. U.S. v. Moore, 83 F.3d 1231, 1233 (10th Cir.1996).
In this case, however, the court finds the testimony of defendant's counsel to be more credible than the testimony of defendant. It is credible to the court that counsel told defendant there was not much to appeal in this matter. The court shares the same view. Of course, defendant may not have shared that opinion and may have asked to appeal anyway. However, defendant appears to have followed his counsel's advice from the start of the case through the sentencing hearing. We believe it is more credible that defendant accepted his counsel's opinion that there was not a good issue to appeal and did not ask his counsel to file an appeal.
Accordingly, we find that defendant, after being advised of his right to appeal as well as the possible merits of an appeal, did not ask his counsel to file an appeal. Therefore, his counsel was not ineffective for failing to file one.
Defendant contends the government breached the plea agreement in this case by not advocating a three-point credit for acceptance of responsibility and by not filing a motion for a downward departure pursuant to U.S.S.G. § 5K1.1. This is an issue which could have been raised on direct appeal. So, defendant cannot raise it now unless he demonstrates cause for failing to raise the issue and prejudice from that error. U.S. v. Cook, 45 F.3d 388, 392 (10th Cir.1995).
We assume defendant is arguing that his former counsel rendered ineffective assistance when he advised there were no promising issues to appeal and that this demonstrates cause for failing to appeal. "To establish a claim for ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was constitutionally deficient, and (2) counsel's deficient performance was prejudicial." Id. citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
Defendant has not shown that his counsel's advice was constitutionally deficient. A "constitutionally deficient" performance is one that "`falls below an objective standard of reasonableness.'" Id., quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2065. An attorney's performance is reviewed with some deference, as explained by the Tenth Circuit in a related context:
When a defendant alleges his appellate counsel rendered ineffective assistance by failing to raise an issue on appeal, we examine the merits of the omitted issue. See [U.S. v.] Dixon, 1 F.3d [1080] at 1083 [(10th Cir.1993)] (). If the omitted issue is without merit, counsel's failure to raise it "does not constitute constitutionally ineffective assistance of counsel." Id. at 1084 n. 5.
. . . . .
In reviewing counsel's decision to omit an issue on appeal, our "scrutiny ... must be highly deferential." [Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. "A fair assessment of attorney performance requires every effort be made `to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'" Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1537 (10th Cir.1994) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). "Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."
We believe counsel exercised reasonable professional judgment in advising that the alleged breach of the plea agreement was not a viable issue on appeal. There are two alleged breaches to consider: the government's failure to recommend a three-point reduction in the offense level for acceptance of responsibility and the government's refusal to file a § 5K1.1 motion for a downward departure.
Defendant's failure to receive acceptance of responsibility was not a viable issue to appeal. The plea agreement stated that:
Defendant's subsequent criminal conduct provided grounds for the government and the court to oppose defendant receiving a three-level reduction in his offense level under the terms of the plea agreement and under the Sentencing Guidelines. U.S. v. Crousore, 1 F.3d 382 (6th Cir.1993); U.S. v. Olvera, 954 F.2d 788, 793 (2d Cir.) cert. denied, 505 U.S. 1211, 112 S.Ct. 3011, 120 L.Ed.2d 885 (1992); U.S. v. Franklin, 902 F.2d 501 (7th Cir.) cert. denied, 498 U.S. 906, 111 S.Ct. 274, 112 L.Ed.2d 229 (1990); U.S. v. Jordan, 890 F.2d 968 (7th Cir.1989); see also, U.S. v. Lassiter, 929 F.2d 267 (6th Cir.1991); U.S. v. Martin, 737 F.Supp. 819 (S.D.N.Y.) aff'd, 923 F.2d 846 (2nd Cir.1990) (table); see also, U.S. v. Yates, 22 F.3d 981 (10th Cir.1994) (); U.S. v. Jessup, 966 F.2d 1354, 1356 (10th Cir.1992) cert. denied, 507 U.S. 965, 113 S.Ct. 1398, 122 L.Ed.2d 772 (1993) (). So, the government did not violate the plea bargain by failing to recommend that defendant receive credit for acceptance of responsibility.
Indeed, as defendant's former counsel was aware, the court informed the parties the day prior to the sentencing hearing that the court was leaning against granting acceptance of responsibility. The court's view on this matter was not influenced by the position of the government because as of that time, the court believed the...
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