US v. McFarlane, 88-186-CR-T-17C.

• Citation: 881 F. Supp. 562
• Decision Date: 31 March 1995
• Docket Number: No. 88-186-CR-T-17C.,88-186-CR-T-17C.
• Parties: UNITED STATES of America v. Bentley A. McFARLANE.
• Court: U.S. District Court — Middle District of Florida

881 F. Supp. 562

UNITED STATES of America v. Bentley A. McFARLANE.

No. 88-186-CR-T-17C.

United States District Court, M.D. Florida, Tampa Division.

March 31, 1995.

COPYRIGHT MATERIAL OMITTED

Gary Montilla, Tampa, FL, for the U.S.

Bentley McFarlane, Ashland, KY, pro se.

Richard L. Cox, for appeal purposes, Tampa, FL, for Bentley A. McFarlane.

ORDER

KOVACHEVICH, District Judge.

The Eleventh Circuit Court of Appeals dismissed the defendant's direct appeal of the underlying conviction and sentence in the criminal case without reaching the merits because no timely notice of appeal had been filed and, because the court lacked jurisdiction. United States v. McFarlane, No. 89-3266 (unpublished opinion, 11th Cir. April 21, 1993).

On March 22, 1993, this Court denied defendant McFarlane's motion filed pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (Case No. 93-178-CIV-T-17C). The defendant timely appealed this decision and filed his brief with the Eleventh Circuit Court of Appeals. In his brief, for the first time, defendant McFarlane alleged that he had instructed his counsel, Robert Alan Warner, to appeal his sentence and that he relied on his counsel's promise that an appeal would be filed. The record shows that defendant's counsel did not file a notice of appeal. No timely notice of appeal was filed nor was a brief submitted by defendant's counsel in conformity with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) to appeal the sentence. Defendant McFarlane did submit a Pro Se appeal which was untimely and, and the Eleventh Circuit ruled, without reaching the merits that it lacked jurisdiction to consider the matter.

In order to serve the best interests of justice in resolving the issue concerning the appeal, and to ascertain the veracity of defendant's allegations regarding his counsel's promise to appeal, this Court agreed with the United States' motion (Docket No. 230), filed pursuant to United States v. Ellsworth, 814 F.2d 613 (11th Cir. (1987), and issued an order on September 8, 1993 (Docket No. 231) certifying that remand for an evidentiary hearing was warranted in the case. On March 29, 1994, the Eleventh Circuit Court of Appeals granted the government's motion and issued a limited remand for this Court to hold an evidentiary hearing on the defendant's ineffective counsel claim. The record was received in the District Court for review by court and counsel on November 9, 1994. The United States and Defendant/Counsel were noticed on December 23, 1994, that an evidentiary hearing would be held at 10:00 A.M. on Friday, February 3, 1995. At the conclusion of the evidentiary hearing, counsel were directed by the Court to submit briefs in writing.¹

ISSUE

Whether the defendant knowingly and voluntarily relinquished his appeal rights or whether his counsel's performance was deficient by failing to perfect an appeal for defendant.

DISCUSSION

In Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984), the Court stated that ineffective assistance of counsel claims fall into two categories. The first category involves claims that the government violated the defendant's right to effective assistance of counsel by impermissibly interfering with counsel's ability to make independent decisions about how to conduct the defense. Strickland, 466 U.S. at 686, 104 S.Ct. at 2063-64. In the second category are claims that the defendant was deprived of his right to the effective assistance of counsel because his counsel, whether retained or appointed, simply failed to provide adequate legal assistance. Claims in the second category are called "actual ineffectiveness claims." Id. This is the only type of ineffectiveness claim which McFarlane raises before this Court.

The Supreme Court established a two-pronged test for evaluating "actual ineffectiveness" claims. Under the first prong, a reviewing court must determine whether counsel's performance was so deficient that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. Under the second prong, the court must determine whether counsel's performance, if deficient, prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In order to sustain an "actual ineffectiveness" claim, the defendant must prevail on both the performance and prejudice prongs.

Under Strickland guidelines for reviewing performance, the convicted defendant must identify the specific acts or omissions he alleges were not the result of reasonable professional judgment on the part of his counsel. The court then must decide whether, in light of all of the circumstances facing trial counsel, his conduct fell within the wide range of professionally competent assistance expected of an attorney. Id. at 690, 104 S.Ct. at 2066. Counsel "is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment." Id. Therefore, McFarlane bears the burden of showing, first, that counsel's performance was constitutionally deficient and, second, that the deficient performance was prejudicial.

The Sixth Amendment guarantees a criminal defendant the right to effective, not errorless, counsel. Young v. Zant, 677 F.2d 792, 798 (11th Cir.1982); Mylar v. Alabama, 671 F.2d 1299, 1300 (11th Cir.1982). It does, however, require that counsel's conduct fall within the range of competency, generally demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970); accord, Beckham v. Wainwright, 639 F.2d 262, 267 (5th Cir.1981).

In order to apply the "Strickland Standard" the Court must inquire into the actual performance of defense counsel and determine whether representation was reasonably effective based on the totality of the circumstances in the entire record. Washington v. Watkins, 655 F.2d 1346, 1355 (5th Cir.1982); Goodwin v. Balkcom, 684 F.2d 794, 804 (11th Cir.1982) cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983).

Every person has an absolute right to an appeal from a trial court conviction, and a criminal defendant's right to counsel extends through the period for taking an appeal. Atilus v. United States, 406 F.2d 694, 697 (5th Cir.1969); Bray v. United States, 370 F.2d 44 (5th Cir.1966). Generally, courts have held the inexcusable failure of counsel to perfect an appeal constitutes ineffective assistance. Chapman v. United States, 469 F.2d 634 (5th Cir.1972). As counsel for the defendant correctly points out, courts have found that the failure of trial counsel to appeal denies defendant the absolute right to appeal a jury conviction and, therefore, deprives him of his right to effective assistance of counsel. Lucey v. Kavanaugh, 724 F.2d 560 (6th Cir.1984); Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).

A guilty plea, however, is a very different matter. By offering a guilty plea, the defendant admits all of the elements of a formal criminal charge, and waives all non-jurisdictional defects in the proceeding. United States v. Jackson, 659 F.2d 73 (5th Cir.1981). In this case, Defendant McFarlane entered a plea of guilty before this court and now argues that his retained counsel was ineffective because he failed to appeal the sentence which was then imposed. This is the precise issue raised by the defendant in Barrientos v. United States, 668 F.2d 838 (5th Cir.1982).

In Barrientos, the court considered whether the failure of petitioners counsel to perfect an appeal from a guilty plea constituted ineffective assistance of counsel and concluded that absent a jurisdictional defect, a defendant usually has no right to appeal from a plea of guilty. Similarly, Defendant McFarlane pled guilty to the charges of the indictment and a Rule 11 Fed.R.Cr.P., rearraignment proceeding was appropriately conducted. Under the circumstances, defendant McFarlane did not have an automatic right to appeal the sentence after entry of a knowing and voluntary guilty plea.

The record reflects that defendant McFarlane was represented by retained counsel, Mr. Robert Alan Warner, who did not file an appeal in his behalf.² Counsel's failure to file an appeal following an entry of a guilty plea is not evidence "per se" of deficient representation. Following the entry of a knowing and voluntary plea of guilty, counsel may reasonably conclude that there is no basis for filing an appeal.

In Rhodes v. Estelle, 582 F.2d 972 (5th Cir.1978), the court stated that when a defendant desires to enter a guilty plea the only required duty of counsel is to ascertain whether the plea is voluntarily and knowingly made. Accord; Lamb v. Beto, 423 F.2d 85, 87 (5th Cir.1970), cert. den. 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84. Therefore, if attorney Warner ascertained that his client McFarlane voluntarily and knowingly entered the plea of guilty, he fulfilled his required duty.

Normally, Mr. Warner would have appeared before the court to provide testimony at the evidentiary hearing relative to his role in representing this defendant. Regrettably, the defendant introduced a death certificate (Exhibit # 1) at the hearing reflecting that attorney, Robert Alan Warner, died on April 18, 1991 (T-Pg. 37, L 12-22).³ Due to the unavailability of counsel's testimony, the Court must rely on transcripts, the contents of the court file and available testimony.

Following a review of the transcript relating to the rearraignment proceeding, the Court takes note that defendant McFarlane was placed under oath and advised that the purpose of the inquiry was to determine the voluntary nature of his plea. The Court did establish, through sworn testimony, that the defendant was pleading guilty to each count of the indictment; that he could read, write and understand the English language; that he knew what he was doing and was not under the influence of drugs, alcohol, medication...