United States v. Pugh
| Decision Date | 25 February 2019 |
| Docket Number | Case No. 15-40018-05-DDC |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. CHRISTOPHER PUGH (05), Defendant. |
| Court | U.S. District Court — District of Kansas |
Before the court is pro se prisoner Christopher Pugh's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence (Doc. 248).1 Mr. Pugh contends his counsel, Kathleen A. Ambrosio, provided ineffective assistance counsel in two ways. First, after sentencing, Mr. Pugh asserts he sent Ms. Ambrosio a letter asking her to file a notice of appeal, and Ms. Ambrosio failed to file the notice. Second, Mr. Pugh claims Ms. Ambrosio failed to challenge two sentencing enhancements recommended in the Amended Presentence Investigation Report and imposed by the court. Mr. Pugh requests the court vacate its judgment and reimpose his sentence without the guideline enhancements so he can perfect a direct appeal. And, if necessary, Mr. Pugh asks that the court appoint him counsel and hold an evidentiary hearing.
For reasons explained below, Mr. Pugh's motion is deferred in part and denied in part. The court defers ruling on Mr. Pugh's first claim, pending an evidentiary hearing. And, the courtdenies Mr. Pugh's second claim, concluding that he has failed to carry his burden to show Ms. Ambrosio acted deficiently under Strickland v. Washington, 466 U.S. 668 (1984).
The facts of Mr. Pugh's case are extensive, and so, the court only recites the facts relevant to Mr. Pugh's current motion. On February 10, 2016, the government charged Mr. Pugh—along with defendants Mr. Anderson, Ms. Middleton, Mr. Woody, and Ms. Woody—with one count of kidnapping resulting in death under 18 U.S.C. § 1201(a)(2) and 2. Doc. 64 (Superseding Indt. at 1-3). On November 16, 2016, Mr. Pugh entered a Plea Agreement. Doc. 131. Under the Plea Agreement, Mr. Pugh entered a guilty plea to a Superseding Information (Doc. 127), charging him with one count of kidnapping under 18 U.S.C. § 1201(a)(2). Doc. 131 at 1. The Plea Agreement included a factual basis for the kidnapping (Doc. 131 at 2-3), which the parties stipulated to and Mr. Pugh affirmed during his extensive plea colloquy. Doc. 177 at 32-44.
Before sentencing, the Probation Office prepared an Amended Presentence Investigation Report ("Amended PSR").2 Under U.S.S.G. § 2A4.1(a), the Amended PSR set Mr. Pugh's base offense level at 32. Doc. 210 at 20. And, the Amended PSR recommended, as Specific Offense Characteristics, a pair of two-point enhancements: one for the victim's serious bodily injury, the other for using a dangerous weapon during the kidnapping. Id. (citing U.S.S.G. § 2A4.1(b)(2)(B), (b)(3)). Last, the Amended PSR reduced the adjusted base level of 36 to 33 to account for Mr. Pugh's acceptance of responsibility. Id. (citing U.S.S.G. § 3E1.1). This offenselevel—combined with Mr. Pugh's criminal history category—produced a guideline range of 135-168 months.
At sentencing, the court adopted the Amended PSR, including the two sentencing enhancements. Doc. 237 at 1. The court sentenced Mr. Pugh to 120 months, imposing a below-guidelines sentence on the government's motion under U.S.S.G. § 5K1.1. Mr. Pugh then filed his § 2255 motion on June 11, 2018. The court ordered the government to respond, and the government filed a Response on June 29, 2018.
A prisoner in federal custody may move to vacate his or her sentence under 28 U.S.C. § 2255(a) if such "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). The Sixth Amendment provides a person charged with a crime the right to the assistance of counsel. U.S. Const. amend. VI. While the Sixth Amendment does not require effective assistance expressly, the Supreme Court has explained that "[i]t relies instead on the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the Amendment envisions." Strickland v. Washington, 466 U.S. 668, 688 (1984). So, a habeas claim will lie where the petitioner shows by a preponderance of the evidence that his counsel provided ineffective assistance. See United States v. Walters, 492 F. App'x 900, 903 (10th Cir. 2012).
An ineffective-assistance claim requires petitioner to "show both that his counsel's performance 'fell below an objective standard of reasonableness' and that 'the deficient performance prejudiced the defense.'" Byrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011) (quoting Strickland, 466 U.S. at 687-88). The court may address the prongs in any order; failureto satisfy either prong is fatal to petitioner's claim. Id. (citing Strickland, 466 U.S. at 697) (further citation omitted).
Under the first prong, the defendant must demonstrate counsel's conduct fell "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. The court applies a "strong presumption that 'counsel's conduct falls within the wide range of reasonable professional assistance.'" Walters, 492 F. App'x at 903 (quoting Strickland, 466 U.S. at 689). "Strategic or tactical decisions on the part of counsel are presumed correct unless they were 'completely unreasonable, not merely wrong so that [they] bear no relationship to a possible defense strategy.'" United States v. McDonald, No. 11-10158-EFM, 2013 WL 3867802, at *3 (D. Kan. July 25, 2013) ().
Under the second prong, prejudice requires a showing of is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
Mr. Pugh contends Ms. Ambrosio provided ineffective assistance of counsel in two different ways. First, after his conviction, Mr. Pugh asserts that he sent a letter to Ms. Ambrosio instructing her to file a notice of appeal. According to Mr. Pugh, Ms. Ambrosio failed to do so. Second, Mr. Pugh claims Ms. Ambrosio failed to challenge the two sentencing enhancements recommended in the Amended PSR and imposed by the court. The court addresses each argument, in turn, below.
Mr. Pugh claims that he sent a letter to Ms. Ambrosio, instructing her to file a notice of appeal. According to Mr. Pugh's affidavit, he sent Ms. Ambrosio the letter two days after his sentencing hearing. Mr. Pugh contends Ms. Ambrosio did not file an appeal, nor did she respond to the letter.
In response, the government submitted an affidavit from Ms. Ambrosio. Doc. 250-1 at 1. On October 17, 2017, Ms. Ambrosio's affidavit asserts that she sent a letter to Mr. Pugh at the Jackson County Jail and it reiterated his appeal rights and deadlines.3 Ms. Ambrosio's affidavit states she did not receive a letter (or any other communication) from Mr. Pugh expressing a desire to appeal. And, Ms. Ambrosio represents she received three letters from Mr. Pugh during her representation, dated as follows: May 20, 2016; an undated letter with an envelope bearing a post mark of August 23, 2016; and September 21, 2016. Id.
Mr. Pugh contends Ms. Ambrosio provided ineffective assistance of counsel by failing to file the requested appeal. When counsel disregards a client's request to file an appeal, counsel acts in a manner that is both professionally unreasonable and presumptively prejudicial. See Bonney v. Wilson, 754 F.3d 872, 882 (10th Cir. 2014) ; see also United States v. Roe, No. 19-600, 2019 WL 350085, at *11 n.19 (10th Cir. Jan. 29, 2019) . When instructions toappeal are disregarded, "a defendant is entitled to a belated appeal without showing the appeal to have merit." United States v. Parker, 720 F.3d 781, 786 (10th Cir. 2013) (citations omitted).
The government concedes that—when client and counsel submit conflicting affidavits on this issue—the court should hold an evidentiary hearing. See United States v. Palermo, 175 F. App'x 244, 245-46 (10th Cir. 2006) (); United States v. Smith, No. 12-20066-32-KHV, 2016 WL 2958454, at *5 (D. Kan. May 23, 2016). The court thus will hold an evidentiary hearing on this issue. And, because Mr. Pugh previously qualified for appointed counsel under 18 U.S.C. § 3006A, the court appoints new counsel to represent defendant at the evidentiary hearing. Smith, 2016 WL 2958454, at *5 (citing Rule 8(c) of the Rules Governing Section 2255 Proceedings); Doc. 88 at 1.
The court also directs counsel for the government to secure Mr. Pugh's appearance. See id.
Next, Mr. Pugh contends that Ms. Ambrosio failed to challenge two sentencing enhancements. In his affidavit, Mr. Pugh states he did not possess a weapon, nor did he see anyone else possess or brandish a weapon in relation to the crime. Doc. 248-1 at 12. And, Mr. Pugh states he did not inflict any harm on anyone, nor did he witness anyone inflict any harm in relation to the crime. Id. According to his motion, Mr. Pugh told Ms. Ambrosio to object to the Amended PSR's assertion that he possessed a dangerous weapon and that he had inflicted bodily harm. Mr. Pugh contends that Ms. Ambrosio told him she would object, but she did not. Inresponse, the...
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