United States v. Bell, Criminal Action No. 05–100–7 RWR

• Decision Date: 28 August 2014
• Docket Number: Criminal Action No. 05–100–7 RWR
• Citation: 65 F.Supp.3d 229
• Court: U.S. District Court — District of Columbia
• Parties: United States of America, v. Jasmine Bell, Defendant.

65 F.Supp.3d 229

United States of America

v.Jasmine Bell, Defendant.

Criminal Action No. 05–100–7 RWR

United States District Court, District of Columbia.

Signed August 28, 2014

Ann H. Petalas, Sherri Lee Berthrong, Thomas Anthony Quinn, Angela S. George, Barry Wiegand, III, Gilberto Guerrero, Jr., Kathleen Ann Connolly, U.S. Attorney's Office, Stratton Christopher Strand, US Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

Nathan I. Silver, II, Law Offices of Nathan I. Silver, Bethesda, MD, Joseph Edmund Beshouri, Washington, DC, for Defendant.

MEMORANDUM OPINION

RICHARD W. ROBERTS, Chief Judge

Petitioner Jasmine Bell moves under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence arguing that his attorney provided ineffective assistance by not complying with his instruction to file a notice of appeal. The government opposes Bell's motion arguing that Bell did not ask his attorney to file a notice of appeal. Because Bell has not proven by a preponderance of the evidence that he asked his attorney to file a notice of appeal, Bell's motion will be denied.

BACKGROUND

In November 2001, Jasmine Bell was arrested for various drug-related offenses. See Mem. of Law and Args. in Supp. of Mot. to Vacate, Set Aside, or Correct an Illegal Sentence Pursuant to Title 28 Sect. 2255 (“Pet'r Mem.”) at 4. In January 2002, Bell was serving misdemeanor sentences imposed by the D.C. Superior Court that expired in September 2002. Id. In May 2002, Bell was sentenced to three years imprisonment for a drug offense and, in August 2002, Bell was sentenced to an additional two years of imprisonment by the D.C. Superior Court for another drug offense. See id.; see also United States' Mot. to Dismiss Def.'s Nunc Pro Tunc Mot. (“Gov't Mot.”) at 1–2; Pet'r Mem., Ex. 2, Decl. of Patrick Liotti (“Liotti Decl.”) ¶¶ 4–5. Thus, when Bell's original misdemeanor sentence expired, he began serving an aggregated total of five years. See Pet'r Mem. at 4; see also Liotti Decl. ¶ 11.

In December 2002, Bell was received at the Federal Correctional Institute in Beckley, West Virginia to serve his five-year sentence.¹ Pet'r Mem. at 4. He was indicted in a superseding indictment for various drug charges by a federal grand jury in2005. Gov't Mot. at 2. While Bell was serving his five-year sentence, he was transported to the United States District Court for the District of Columbia by the U.S. Marshals under a writ of habeas corpus ad prosequendum to face his federal charges. Pet'r Mem. at 4; Gov't Mot. at 2.

In August 2006, Bell pled guilty under Federal Rule of Criminal Procedure 11(c)(1)(C)² to conspiracy to engage in racketeering in violation of 18 U.S.C. § 1962(d). Gov't Mot. at 3. The plea agreement exposed Bell to a range of 135 to 168 months imprisonment. Id. Before sentencing, Bell's attorney, Joseph Beshouri, moved under United States Sentencing Guidelines (“USSG”) § 5G1.3 for a reduction, below the range agreed to in the plea agreement, in light of Bell's D.C. Superior Court sentences.³ United States' Resp. to Def.'s Nunc Pro Tunc Mot. (“Gov't Resp.”), Ex. D, Def.'s Mem. in Aid of Sentencing at 7–10. This court denied the reduction motion and on December 1, 2006, sentenced Bell to 146 months, within the agreed-upon range. Id., Ex. E, Tr. of Bell's Sentencing (“Sent'g Tr.”) at 61–62; id., Ex. F at 2.

In March of 2007, Bell wrote the court a letter seeking credit on his current sentence for time he spent detained while awaiting trial. Gov't Mot. at 3–4; Pet'r Mem., Ex. 3, Mar. 2007 Letter. In October of 2007, Bell wrote a second letter in which he requested appointment of a new attorney because his attorney would not file an appeal on his behalf. See Gov't Resp., Ex. I, Oct. 2007 Letter. Bell, who was at that time housed at the Federal Correctional Institute in Bennettsville, South Carolina, then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the District of South Carolina. See Pet'r Mem. at 4. Bell's petition was denied. Id.

Bell moves under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence arguing that he received ineffective assistance of counsel because his trial counsel, Beshouri, failed to appeal despite Bell's request to Beshouri to file an appeal. The government opposes, arguing that Bell never asked Beshouri to file a notice of appeal. Because of the factual disputes on the record, an evidentiary hearing on Bell's § 2255 claim was held on July 18, 2014. Because Bell has failed to prove by a preponderance of the evidence that he asked Beshouri to file a notice of appeal, Bell's motion will be denied.

DISCUSSION

In a § 2255 motion, a petitioner can move the sentencing court to “vacate, set aside or correct the sentence” if “the sentence was imposed in violation of the Constitution or laws of the United States, ... or [if] the sentence was in excess of the maximum authorized by law[.]” 28 U.S.C. § 2255(a). The burden lies on the petitioner to prove the violation by a preponderance of the evidence. United States v. Pollard, 602 F.Supp.2d 165, 168 (D.D.C.2009).

The Sixth Amendment provides criminal defendants the right to be represented by counsel. U.S. Const. amend. VI. Implicit in this guarantee is that counsel will provide effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ( “[T]he right to counsel is the right to the effective assistance of counsel.”). In order to prove ineffective assistance of counsel, Bell must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 684–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The Strickland test extends to claims of ineffective assistance based on a failure to file an appeal.... A lawyer who disregards specific instructions from the petitioner to file a notice of appeal acts in a professionally unreasonable manner.” United States v. Felder, 563 F.Supp.2d 160, 167 (D.D.C.2008) (citing United States v. Taylor, 339 F.3d 973, 977 (D.C.Cir.2003) ).

Counsel's failure to file an appeal requested by the client “cannot be considered a strategic decision.” ... A petitioner is entitled to resentencing and to an appeal without having to show that it would likely have had merit when his counsel does not file a requested appeal.... If a petitioner's attorney does not comply with a request to file an appeal, the sentence will be vacated and the petitioner will be resentenced to allow him to appeal.

Moore v. United States, 881 F.Supp.2d 125, 136 (D.D.C.2012) (quoting Roe v. Flores–Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) ).⁴

In addition, Bell's appeal had to have been taken within 10 days after his sentencing judgment was entered. Fed. R. App. P. 4 (b)(1)(A)(i), 4(b)(6).⁵ Alternatively, “[u]pon a finding of excusable neglect or good cause, the district court may ... extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed....” Id. 4(b)(4); see also Evidentiary Hr'g Tr., July 18, 2014, (“Hr'g Tr.”) at 70:23–71:8.

Here, Bell contends that he asked Beshouri to file an appeal, in person, immediately following his sentencing hearing and again, through letters, in the months following his sentencing hearing. Bell also contends that Beshouri failed to file any such notice of appeal and thereby rendered ineffective assistance. Since it is undisputed that Beshouri did not file a notice of appeal, the central factual issues are whether Bell asked Beshouri to file a notice of appeal and if so, the date on which Bell made the request.

In this case, the judgment was entered on December 8, 2006, Gov't Resp., Ex. F, Judgment at 1; Hr'g Tr. at 91:20–92:13, giving Bell until December 18, 2006 to file a notice of appeal. Bell presented unrebutted testimony that he asked Beshouri to file an appeal while they were in the holding cell, immediately following the sentencing hearing on December 1, 2006.⁶

Hr'g Tr. at 15:12–16. Beshouri, on the other hand, testified that he had no recollection of the conversation, id. at 71:21–22, and did not remember talking to Bell immediately following Bell's sentencing hearing. Id. at 71:25–72:4.⁷

Although Beshouri does not recall such a conversation, evidence demonstrates that Beshouri vigorously represented Bell moments before any conversation he may have had in the holding cell after Bell's sentencing hearing. Hr'g Tr. at 12:20–23, 13:1–16, 67:8–18, 68:15–69:23. Beshouri's efforts to seek a USSG § 5G1.3 reduction of Bell's sentence was so vigorous that, at one point in the hearing, the prosecutor threw down his papers and threatened to revoke the plea agreement.⁸ Id. at 23:19–23, 32:5–12, 57:2–58:16, 69:16–23, 90:18–91:3; see also Sent'g Tr. at 48 (at the sentencing, the prosecutor stated “I apologize to the Court and counsel if I acted more animatedly than I needed to. I am upset about it, clearly, and I do clearly think that ... this is trying to breach the agreement[.]”). Even though Beshouri testified that he was “not sure what there was to appeal [after the sentencing,]” Hr'g Tr. at 76:21–22, his vigor during the sentencing makes it unlikely that he, immediately following this hearing, would choose to ignore or reject a directive of his client to file a notice of appeal.

Beshouri also credibly testified that he would have filed an appeal had he been asked to do so. Hr'g Tr. at 71:22–24. Beshouri noted that it was his practice, when a client asked for an appeal, to file the notice of appeal and immediately contact the Federal Public Defenders' Office so that the Federal Public Defenders' Office would assign the client a new appellate attorney. Id. at 77:16–25. Beshouri further credibly testified that he was aware...