United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
This
cause comes before the court on Petitioner Tamaica
Hoskins's motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255. Doc. No.
1.[1]
I.
INTRODUCTION
On
March 13, 2015, Hoskins appeared before this court and pled
guilty under a plea agreement to conspiracy to commit wire
fraud, in violation of 18 U.S.C. § 1349, and aggravated
identity theft, in violation of 18 U.S.C. § 1028A. The
plea agreement contained a waiver provision whereby Hoskins
relinquished her right to appeal and collaterally attack her
conviction and sentence except on grounds of ineffective
assistance of counsel and prosecutorial misconduct. On June
15, 2015, the district court sentenced Hoskins to 145 months
in prison, consisting of 121 months for the conspiracy count
and a mandatory consecutive term of 24 months for the
aggravated-identity-theft count. Hoskins took no direct
appeal.
On June
8, 2016, Hoskins, proceeding pro se, filed this
§ 2255 motion raising claims that her counsel rendered
ineffective assistance by failing to (1) file an appeal after
she asked counsel to do so; (2) conduct an adequate pretrial
investigation; (3) file substantive pretrial motions on her
behalf; (4) explain the consequences of her plea, including
the maximum sentence she faced; and (5) object to the
presentence investigation report (“PSI”)
calculations or to submit any mitigating evidence regarding
sentencing. Doc. No. 1 at 4-5; see Doc. Nos. 10
& 10-1.
In
initially responding to Hoskins's claim that she asked
him to file an appeal, Hoskins's former counsel, Tiernan
W. Luck III, submitted an affidavit attesting that (1) to the
best of his recollection, Hoskins had not asked him to file
an appeal after he told her about the effects of the appeal
waiver in her plea agreement, and (2) his file for
Hoskins's case contains no record of Hoskins's having
asked him to file an appeal. Doc. No. 12 at 1. Because there
was a genuine dispute over material facts relevant to this
issue, the court set an evidentiary hearing on Hoskins's
claim that Luck was ineffective for failing to file an appeal
after she asked him to do so. Doc. No. 16. The court
appointed new counsel to represent Hoskins at the evidentiary
hearing, which was set for June 6, 2019. Id.
When
court convened for the evidentiary hearing on June 6, 2019,
counsel for the government informed the court that the
parties had reached an agreement about facts that might be
dispositive of Hoskins's claim and might obviate the need
for an evidentiary hearing. The court then held an
on-the-record hearing in chambers, where Hoskins's
counsel informed the court that Luck recently acknowledged
that Hoskins had asked him to file an appeal shortly after
her sentencing, but that Luck declined to file an appeal,
telling Hoskins that an appeal in her case would be
frivolous. Counsel for the government agreed that Luck
recently acknowledged these same facts.
In
light of Luck's acknowledgement that Hoskins asked him to
file an appeal, the government concedes that Hoskins's
claim that Luck was ineffective for failing to file the
requested appeal is meritorious and that Hoskins is therefore
entitled to an out-of-time appeal. Consequently, and as set
out below, the undersigned recommends that Hoskins's
§ 2255 motion be granted in part and dismissed without
prejudice in part.
II.
DISCUSSION
A.
Counsel's Failure to File an Appeal
In
Roe v. Flores-Ortega, 528 U.S. 470 (2000), the
Supreme Court held that the test in Strickland v.
Washington, 466 U.S. 668 (1984), applies to determine
whether counsel is ineffective for failing to file an appeal.
Flores-Ortega, 528 U.S. at 477. Under
Strickland, a defendant demonstrates ineffective
assistance of counsel by showing: “(1) that
counsel's representation fell below an objective standard
of reasonableness, and (2) that counsel's deficient
performance prejudiced the defendant.”
Flores-Ortega, 528 U.S. at 476-77 (internal
quotation marks and internal citations omitted).
Regarding
the objective standard of reasonableness, the Supreme Court
in Flores-Ortega reaffirmed that an attorney who
fails to file an appeal on behalf of a client who
specifically requests it acts in a professionally
unreasonable manner. Id. at 477. Regarding
prejudice, the Flores-Ortega Court held that
prejudice is presumed where counsel fails to file a requested
appeal, so that when an attorney fails to file an appeal when
requested to do so, the defendant need not demonstrate that
she would have been able to raise meritorious issues on
appeal. Id. at 477-78 & 483-86. The Court
indicated that it would be unfair to require a litigant to
demonstrate in a § 2255 proceeding that her appeal would
have had merit. Id. at 486. Instead, the defendant
must only demonstrate there is a reasonable probability that,
but for counsel's failure, she would have timely
appealed. Id. at 484.
An
attorney's failure to pursue an appeal requested by the
defendant normally should result in the court granting an
out-of-time appeal, even absent the defendant showing that he
or she would have had any viable grounds for appeal.
Flores-Ortega, 528 U.S. at 477; see also Martin
v. United States, 81 F.3d 1083, 1084 (11th Cir. 1996);
Regalado v. United States, 334 F.3d 520, 525 (6th
Cir. 2003). Here, the parties agree that Hoskins instructed
her counsel that she wanted to pursue an appeal but that her
counsel failed to comply with her request. Consequently, the
court recommends that § 2255 relief on this allegation
of ineffective assistance of counsel is due to be granted,
and Hoskins should be granted the opportunity to file an
out-of-time appeal.[2]
B.
Dismissal of Remaining ...