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Cunningham v. United States

United States District Court, N.D. Alabama, Southern Division

January 7, 2019




         This 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.[1] (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 denied.

         I. Procedural Background

         On 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).

         Attorney 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. (Id.).

         Petitioner 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).

         On 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.[2] (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 memory loss.
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).

         He 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).

         Additionally, 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).

         Finally, 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 13-15).

         The court conducted a consent hearing on August 30, 2016 and accepted Petitioner's guilty plea.[3] (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).

         On 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.

         Thereafter, 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.[4] 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 followed.

         Petitioner filed the instant Motion to Vacate on February 14, 2018.[5] 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.).

         In its 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).

         The 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 ...

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