United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
case is before the court on Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence. (No.
2:18-cv-08004-RDP (“Habeas Docket”), Doc. # 1).
After the Government filed a Motion for a More Definite
Statement, Petitioner submitted an amended
Motion. (Id., Doc. # 5). The Government
responded to Petitioner's amended Motion. (Id.,
Doc. # 6). On December 4, 2018, the court conducted an
evidentiary hearing to consider two questions: (1) whether
Petitioner directed his counsel of record, James Kendrick, to
file an appeal on his behalf; and (2) whether
constitutionally adequate counsel would have consulted with
his client about filing an appeal. The Motion is now ripe for
decision. After careful review of all record evidence and
having conducted an evidentiary hearing in which it visually
observed the demeanor of Petitioner and Kendrick as they
testified, and for the reasons explained below, the court
concludes that Petitioner's Motion to Vacate is due to be
January 27, 2016, Petitioner was indicted for (1) knowingly
possessing a firearm as a convicted felon in violation of 18
U.S.C. § 922(g)(1) (Count One) and (2) knowingly
possessing a firearm which he knew or had reasonable cause to
believe was stolen in violation of 18 U.S.C. § 922(j)
(Count Two). (No. 2:16-cr-00035-RDP-HNJ (“Criminal
Docket”), Doc. # 1).
Victor Revill originally represented Petitioner, until Robin
P. Robertson and James Tobia Gibson entered an appearance on
February 3, 2016. (Id., Docs. # 4, 5). On March 18,
2016, Petitioner executed his first plea agreement with the
Government, in which he agreed to plead guilty to Count One
of the Indictment. (Id., Doc. # 13 at 1). In
exchange, the Government agreed to dismiss Count Two.
appeared before the undersigned on March 22, 2016 for a
change of plea hearing. (Id., Doc. # 14 at 1).
However, during the plea colloquy, Petitioner informed the
court that he believed he was suffering from undiagnosed
bipolar disorder, which prevented him from continuing to
participate in the consent hearing. (Id.). Concerned
about Petitioner's competence, the court ordered
Petitioner to be examined by a forensic psychologist, Dr.
Kimberly Ackerson. (Id. at 2). Dr. Ackerson filed
her report with the court on April 25, 2016, ultimately
concluding that there were “no psychiatric or cognitive
issues on the part of Mr. Cunningham precluding him from
serving in the role of defendant, including participating in
the plea bargain process.” (Id., Doc. # 15 at
6). Thereafter, the court conducted a competency hearing and
found that Petitioner was fully capable to assist his counsel
in his defense, to evaluate his options, and if necessary, to
proceed to trial. (Id., Doc. # 24 at 1). Petitioner
signaled his desire to go to trial. The court accepted
Petitioner's Waiver of Speedy Trial and set a trial date
for September 6, 2016. (Id., Docs. # 24, 25).
August 30, 2016, Petitioner executed his second plea
agreement with the Government. That plea agreement was
entered pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C) and stipulated a custodial sentence of 120
months. (Id., Doc. # 55). Again,
Petitioner agreed to plead guilty to Count One in exchange
for the Government's agreement to dismiss Count Two.
(Id., Doc. # 55 at 1). The plea agreement contained
the following agreed-to factual basis:
Reports from witnesses at the scene revealed that Detective
Brooks had followed Cunningham into the shopping center.
After abruptly stopping in front of the DTLR Clothing Store,
Cunningham immediately exited his vehicle with a DTLR bag in
hand, walked back toward Detective Brooks, and began yelling
at him. Brooks ordered the defendant back inside his vehicle.
Cunningham, however, refused to comply and began cursing the
officer (“Fuck the police!”). Suddenly, the
defendant pushed Detective Brooks and punched him in the
face. As the two men struggled, Cunningham drew Detective
Brooks' service pistol from its holster, grabbed it by
the barrel, and used it to strike Detective Brooks numerous
times in the head/face until rendering him unconscious.
Witnesses, who were standing only feet away, report that
Cunningham then took the pistol, returned to his vehicle, and
left the scene. During the beating, Detective Brooks
sustained serious physical injuries, including a severe
concussion, neck injuries, a black eye, and lacerations to
his head that required 17 staples to close. He woke up in the
hospital five hours later. Brooks did not return to work for
more than two months and still experiences some short-term
Responding to the scene, BPD officers immediately began
searching the area and soon located Cunningham's vehicle.
The defendant had left it parked in front of a residence
located at 648 Shadywood Drive. The homeowner, Brandon
Howard, was standing in the yard near the vehicle when police
arrived. While police were in the process of detaining Howard
for questioning, Cunningham came from around the side of the
house and surrendered. After he was cuffed, Cunningham
volunteered that Brooks' gun was “in the
car.” Cunningham also stated that he was alone at the
time of the incident and that nobody else had been involved.
Police searched Cunningham's vehicle prior to towing and
found Detective Brooks' pistol.
Prior to this incident, Cunningham had been convicted of
three felony offenses, including Breaking and Entering a
Vehicle; Robbery, First Degree; and Assault, Second Degree.
ATF reports that the firearm functions as designed, and that
it was not made in Alabama, thus affecting commerce.
(Id. at 3-5). Petitioner made several changes to
these facts (and initialed each change) including the
following: he denied approaching, yelling, cursing or
punching Detective Brooks. (Id. at 3-4).
confirmed his agreement to the remainder of the factual basis
through the following language: “The defendant hereby
stipulates that the facts stated above are substantially
correct and that the Court can use these facts in calculating
the defendant's sentence.” (Id. at 5).
the agreement contained a limited appeal waiver and a waiver
of the right to seek post-conviction relief. That waiver
provision reads as follows:
In consideration of the recommended disposition of this case,
I, Jenard Shamar Cunningham, hereby waive and give up my
right to appeal my conviction and/or sentence in this case,
as well as any fines, restitution, and forfeiture orders, the
court might impose. Further, I waive and give up the right to
challenge my conviction and/or sentence, any fines,
restitution, forfeiture orders imposed or the manner in which
my conviction and/or sentence, any fines, restitution, and
forfeiture orders were determined in any post-conviction
proceeding, including, but not limited to, a motion brought
under 28 U.S.C. § 2255.
The defendant reserves the right to contest in an appeal or
post-conviction proceeding the following:
(a) Any sentence imposed in excess of the applicable
statutory maximum sentence(s);
(b) Any sentence imposed in excess of the guideline
sentencing range determined by the court at the time sentence
is imposed; and
(c) Ineffective assistance of counsel.
The defendant acknowledges that before giving up these
rights, the defendant discussed the Federal Sentencing
Guidelines and their application to the defendant's case
with the defendant's attorney, who explained them to the
defendant's satisfaction. The defendant further
acknowledges and understands that the government retains its
right to appeal where authorized by statute.
I, Jenard Shamar Cunningham, hereby place my signature on the
line directly below to signify that I fully understand the
foregoing paragraphs, and that I am knowingly and voluntarily
entering into this waiver.
(Id. at 6-7).
Petitioner confirmed his understanding of the entire
agreement by agreeing to the following language: “I
have personally and voluntarily placed my initials on every
page of this Agreement and have signed the signature line
below to indicate that I have read, understand, and approve
all of the provisions of this Agreement, both individually
and as a total binding agreement.” (Id. at
court conducted a consent hearing on August 30, 2016 and
accepted Petitioner's guilty plea. (Id.,
Doc. # 60). During the hearing, Petitioner acknowledged that
he had read each page of the agreement and understood its
operation and effect. (Id. at 16).
November 16, 2016, Petitioner filed a letter with the court
requesting new counsel and permission to withdraw his guilty
plea. (Id., Doc. # 58). The court appointed Attorney
James Kendrick on December 20, 2016 to replace Robertson and
Gibson, and Kendrick represented Petitioner with respect to
his sentencing proceedings. (Id., Docs. # 61, 62).
At the time of sentencing, Kendrick was also representing
Petitioner in his corresponding state case. Petitioner
currently faces charges in Jefferson County state court.
State of Alabama v. Cunningham, DC-2015-007165.
Petitioner filed a pro se Motion to Withdraw his
Guilty Plea. (Id., Doc. # 63). The court held a
hearing on that Motion. (Id., Docs. # 68, 75). With
Kendrick as his attorney, Petitioner voluntarily withdrew the
Motion and chose to proceed with sentencing. Consistent with
the stipulated sentence in his binding plea agreement,
Petitioner was sentenced to a prison term of 120 months as to
Count One. (Id., Docs. # 71, 72 at 12). After the
court announced the sentence, the court explained
Petitioner's right to appeal:
Mr. Cunningham, you have the right to appeal the sentence
that I just imposed within 14 days if you believe the
sentence is in violation of the law. However, as you know,
you have entered into a plea agreement in this case which
purports to waive some if not all of your rights to appeal
your conviction and file a later lawsuit challenging your
conviction and sentence in this case. Those waivers are
generally enforceable, but if you think the waiver is
unenforceable for some reason and wish to file an appeal, you
can file the appeal and explain to the court of appeals why
the waiver does not include your appeal. Just remember that
if you decide to take an appeal, with a few exceptions: Any
notice of appeal must be filed within 14 days of judgment
being entered in your case.
(Id., Doc. # 75 at 15). Petitioner responded that he
understood these conditions. (Id.). No. appeal
filed the instant Motion to Vacate on February 14,
2018. In his petition, he alleges that he
received ineffective assistance of counsel when Attorney
Kendrick failed to file an appeal despite being asked to do
so. (No. 2:18-cv-08004-RDP (“Habeas Docket”),
Doc. # 1 at 5). In an affidavit attached to his Motion,
Petitioner submits that (1) he asked Kendrick to file a
direct appeal “raising the issues which were
contradicted by the record of conviction;” (2) the plea
hearing and colloquy “rendered the plea unknowingly and
unintelligently entered which essentially lead to a higher
imposition of sentence;” (3) he wrote to Kendrick
several times, but Kendrick did not respond to his letters
for unknown reasons; and (4) he was unaware that an appeal
had not been filed until he contacted the court several
months later. (Id. at 15). In response to the
Government's Motion for a More Definite Statement
(Id., Doc. # 3), Petitioner filed an amended Motion
stating that he verbally requested Kendrick to file a direct
appeal during the April 11, 2017 sentencing hearing.
(Id., Doc. # 5 at 1). He also alleges that he
attempted to contact Kendrick via mail while incarcerated at
the “detention center waiting to get [designated] to a
federal prison.” (Id.).
response to Petitioner's Motion, the Government conceded
that this was a case of dueling affidavits requiring an
evidentiary hearing. (Id., Doc. # 6). The Government
attached an affidavit from Kendrick stating that Petitioner
never directed him to file an appeal. (Id., Doc. #
6-1). While Kendrick admitted that he never consulted with
Petitioner about the possibility of appeal, the Government
argues that his failure to do so was reasonable because (1)
Petitioner expressed no dissatisfaction with Kendrick's
services, (2) Petitioner resolved his case with a binding
guilty plea that reduced his potential sentence, (3)
Petitioner actually received the lowered sentence he
bargained for, and (4) the plea agreement that Petitioner
signed contained a limited appeal waiver. Thus, the
Government asserts Kendrick had no reason to believe that
Petitioner wished to appeal his case. Kendrick also
acknowledged that he received two letters from Petitioner in
January and February 2018, months after the expiration of the
14-day appeal window. (Id. at 7).
court set this case for an evidentiary hearing on December 4,
2018 in order to decide whether Petitioner requested counsel
to file an appeal. (Id., Doc. # 7). The court
appointed attorney Jeffrey D. Bramer to represent ...