United States v. Warren

• Decision Date: 14 July 2021
• Docket Number: CRIMINAL 1:18-CR-00200
• Court: U.S. District Court — Western District of Louisiana
• Parties: UNITED STATES OF AMERICA, Respondent v. REGINALD T. WARREN, Petitioner

UNITED STATES OF AMERICA, Respondent
v.
REGINALD T. WARREN, Petitioner

CRIMINAL No. 1:18-CR-00200

United States District Court, W.D. Louisiana, Alexandria Division

July 14, 2021

Judge DRELL MAGISTRATE

REPORT AND RECOMMENDATION

Joseph H.L. Perez-Montes United States Magistrate Judge

Before the Court is a Motion to Vacate, Set Aside, or Correct Sentence filed by Petitioner Reginald T. Warren ("Warren") pursuant to 28 U.S.C. § 2255. ECF No. 71. Because Warren contends his attorney failed to file an appeal and no notice of appeal was filed, an evidentiary hearing should be held to determine whether Warren's right to appeal should be reinstated. A ruling on the remaining issue should be deferred pending the outcome of the evidentiary hearing.

I. Background

Warren is contesting his convictions, obtained pursuant to guilty plea, in the United States District Court for the Western District of Louisiana, Alexandria Division, on one count of possession with intent to distribute 50 grams or more of methamphetamine, and one count of possession of a firearm in furtherance of a drug trafficking offense. ECF No. 71. Warren was sentenced to a total of 300 months of imprisonment. ECF Nos. 142, 144. Warren did not appeal his convictions and sentences.

Warren filed this § 2255 Motion raising the following issues:

1

1. Warren had ineffective assistance of counsel when his attorney failed to file a direct appeal after Warren requested that she do so

2. Warren's attorney failed to challenge the expired search warrant return. Warren's motion is before the undersigned Magistrate Judge for initial review

See 28 U.S.C. § 2255 and Rule 4(b) of the Federal Rules Governing Section 2255 Proceedings For the United States District Courts, which state in part, "If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate."

II. Law and Analysis

A. The basis for a § 2255 action.

There are four grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (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 exceeds the statutory maximum sentence! or (4) the sentence is "otherwise subject to collateral attack." See 28 U.S.C. § 2255; United States v. Cates, 952 F.2d 149, 151 (5th Cir.), cert, den., 504 U.S. 962 (1992). The scope of relief under § 2255 is consistent with that of the writ of habeas corpus.

2

See Cates, 952 F.2d at 151; see also United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996).

Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. Nonconstitutional claims that could have been raised on direct appeal, but were not, may not be asserted in a collateral proceeding. See United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992); see also United States v. Ressler, 54 F.3d 257, 259 (5th Cir. 1995). A collateral challenge may not do service for an appeal. After conviction and exhaustion and waiver of any right to appeal, the federal courts are entitled to presume that the defendant stands fairly and finally convicted. See United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991), cert, den., 502 U.S. 1076 (1992). Even if a defendant raises a constitutional error, he may not raise an issue for the first time on collateral review without showing both cause for his procedural default and actual prejudice resulting from the error. See United States v. Minims, 43 F.3d 217, 219 (5th Cir. 1995).

Moreover, a prisoner who shows the possibility of prejudice may not obtain collateral relief under §2255 without demonstrating cause for his failure to raise the error at trial or on direct appeal. See Shaid, 937 F.2d at 229. Cause is demonstrated by showing objective external factors which prevented the petitioner from having raised the instant claim previously, and actual prejudice resulting from the error.

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Absent exceptional circumstances, establishment of ineffective assistance of counsel satisfies cause and prejudice. See United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995).

B. Warren's attorney was ineffective if she failed to file a notice of appeal.

Warren contends he had ineffective assistance of counsel when his attorney failed to file a direct appeal after Warren requested that she do so.

To establish that his legal representation at trial fell short of the assistance guaranteed by the Sixth Amendment, a convicted defendant must meet the two-pronged test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). He must show that his counsel's performance was both deficient (i.e., that counsel did not provide reasonably effective assistance under prevailing professional norms) and prejudicial (i.e., that errors by counsel actually had an adverse effect on the defense). See Anderson v. Collins, 18 F.3d 1208, 1215 (5th Cir. 1994). The former component of the test authorizes only "highly deferential" judicial scrutiny, requiring the defendant to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. See Anderson, 18 F.3d at 1215. On the latter component, it is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Rather, the defendant must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Anderson, 18 F.3d at 1215; see also U.S. v. Segler, 37 F.3d 1131, 1136 (5th Cir. 1994).

4

"In certain Sixth Amendment contexts, prejudice is presumed." See Garza v. Idaho, 139 S.Ct. 738, 744 (2019) (quoting Strickland, 466 U.S. at 692. No. showing of prejudice is necessary "if the accused is denied counsel at a critical stage of his trial," Garza, 139 S.Ct. at 744 (quoting United States v. Cronic, 466 U.S. 648, 659 (1984), or left "entirely without the assistance of counsel on appeal," Garza, 139 S.Ct. at 744 (quoting Penson v. Ohio, 488 U.S. 75, 88 (1988)). "When counsel fails to file a requested appeal, a defendant is entitled to ... an appeal without showing that his appeal would likely have merit." Peguero v. United States, 526 U.S. 23, 28 (1999). Prejudice is presumed "when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken." Garza, 139 S.Ct. at 744 (quoting Flores-Ortega, 528 U.S. at 484). This presumption applies even when the defendant has signed an appeal waiver. See Garza, 139 S.Ct. at 744 ("[E]ven the broadest appeal waiver does not deprive a defendant of all...