United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
P.
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE.
This
cause is before the undersigned for entry of a report and
recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and
General Local Rule 72(a)(2)(R), following a remand by the
Eleventh Circuit Court of Appeals for further
proceedings-that is, an evidentiary hearing-in light of the
Supreme Court's recent decision in Garza v.
Idaho, 139 S.Ct. 738, 203 L.Ed.2d 77 (2019).
(Compare Doc. 285, at 1-2 (“[T]he [Supreme]
Court held that the presumption of prejudice applies to the
failure of defense counsel to carry out his client's
request to appeal ‘regardless of whether the defendant
has signed an appeal waiver.' Id. at 742. Lacey,
despite having signed such an appeal waiver, contends that he
instructed his counsel to appeal. Whether he did so is a
contested issue of fact that entitles him to an evidentiary
hearing in the district court on his motion under 28 U.S.C.
§ 2255. See Aron v. United States, 291 F.3d
708, 715 (11th Cir. 2002).”) with Doc. 286, at
2 (Chief District Judge Kristi DuBose's April 12, 2019
referral of this matter to the undersigned to conduct an
evidentiary hearing on Lacey's claim of ineffective
assistance of counsel on account of defense counsel's
failure “to file a Notice of Appeal as
requested.”)). The undersigned conducted an evidentiary
hearing on July 23, 2019, and following consideration of all
relevant pleadings in this case and United States v.
Lacey, Criminal No. 12-0046-KD, as well as the
evidentiary hearing testimony of Adrian Lacey, together with
the arguments of counsel, it is recommended that
Petitioner's § 2255 motion be
DENIED on the sole issue of whether trial
counsel was constitutionally deficient in failing to file an
appeal as expressly directed.
FACTUAL
BACKGROUND
On May
30, 2013, Lacey was indicted on one count of conspiracy to
defraud the United States in violation of 18 U.S.C. §
371 (Doc. 1, Count One, at 1-3); eleven counts of wire fraud
in violation of 18 U.S.C. §§ 1343 & 2 (Doc. 1,
Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20 & 22, at 3-4,
4-5, 5-6, 7, 8, 9, 10-11, 11-12, 12-13 13-14 & 15); and
eleven counts of aggravated identity theft in violation of 18
U.S.C. §§ 1028A(a)(1) & 2 (Doc. 1, Counts 3, 5,
7, 9, 11, 13, 15, 17, 19, 21 & 23, at 4, 5, 6, 7-8, 8-9,
10, 11, 12, 13, 14 & 15-16). By superseding indictment
returned on November 20, 2013, more “over acts”
were alleged in support of Count One charging conspiracy to
defraud the United States (see Doc. 135, at 1-4)
and, as well, Petitioner was charged with five more counts
each of wire fraud and aggravated identity theft (see
Id. at 4-9). In toto, therefore, Adrian Lacey was
charged with one count of conspiracy to defraud the United
States, 16 counts of wire fraud, and 16 counts of aggravated
identity theft. (Doc. 135.)[1]
On
February 18, 2014, Adrian Lacey entered a counseled guilty
plea to Counts One, Two and Three of the superseding
indictment, Count One charging conspiracy to defraud the
United States in violation of 18 U.S.C. § 371, Count Two
charging wire fraud (on May 6, 2012) in violation of 18
U.S.C. §§ 1343 & 2, and Count Three charging
aggravated identity theft (on May 6, 2012) in violation of 18
U.S.C. §§ 1028A(a)(1) & 2. (See Doc.
172; compare Id. with Doc. 174.)
The
final PSR reflects that based on a total offense level of 28
and a criminal history category of V, the guideline range of
punishment was 130 to 162 months. (Doc. 216, at 23). This
document also reflected that a 24-month mandatory consecutive
sentence was due to be imposed. (Id.). The
government filed a motion for downward departure on November
13, 2014, therein requesting that the Court depart downward
from the low end of the guidelines by some 48 months. (Doc.
227). At sentencing, on November 14, 2014, the
government's motion for downward departure was granted
(Doc. 229) and Adrian Lacey was sentenced to a total
custodial term of 106 months (see Docket Sheet,
Minute Entry for November 14, 2014), consisting of 60 months
as to Count 1, a concurrent term of 82 months as to Count 2,
and a consecutive term of 24 months as to Count 3 (Doc. 232,
at 2).[2] This 106-month sentence was ordered to run
concurrently, beginning on November 14, 2014, with the
custodial sentence imposed in Criminal No. 12-00046.
(Id.)[3] On the date of sentencing, November 14,
2014, Lacey filed a notice of non-appeal. (See Doc.
230).
On July
6, 2015, Adrian Lacey concurrently filed a motion to reduce
his sentence pursuant to 18 U.S.C. § 3582(c)(2) (Doc.
245) and a motion to vacate (Doc. 246). The motion to reduce
sentence was denied on July 14, 2015. (Doc. 248). Lacey was
ordered to file a motion to vacate utilizing this Court's
form (Doc. 250), which Petitioner did on August 17, 2015
(Doc. 251). Lacey later amended his motion to vacate on two
occasions. (See Docs. 258-59, 261-62 & 264-65).
One of the issues raised by Lacey in his motion to vacate, as
twice amended, was that his attorney was constitutionally
ineffective in failing to file a direct appeal on his behalf,
as requested. (See Doc. 271, at 7, citing Doc.
258)[4]. Magistrate Judge Bert. W. Milling, Jr.,
entered a report and recommendation on March 28, 2016 that
Lacey's motion to vacate be denied (Doc.
271)[5]
and this report and recommendation was adopted as the opinion
of the Court on May 2, 2016 (Docs. 272 & 273.) Lacey
appealed. (Doc. 274).
On
February 13, 2019, a panel of the Eleventh Circuit Court of
Appeals issued a decision affirming the judgment of this
Court and finding that this Court did not abuse its
discretion in denying Lacey's motion to vacate without
conducting an evidentiary hearing directed to the issue of
whether Petitioner was denied effective assistance of counsel
on account of his trial counsel's failure to file a
Notice of Appeal. (Doc. 284). However, by mandate issued on
April 2, 2019, the same Eleventh Circuit panel vacated both
its February 13, 2019 judgment and opinion and this
Court's decision denying Adrian Lacey's motion to
vacate, filed in accordance with 28 U.S.C. § 2255, and
remanded the case for further proceedings in light of the
Supreme Court's recent decision in Garza v.
Idaho, 139 S.Ct. 738, 203 L.Ed.2d 77 (2019).
(See Doc. 285, at 1-2):
[T]he [Supreme] Court held that the presumption of prejudice
applies to the failure of defense counsel to carry out his
client's request to appeal “regardless of whether
the defendant has signed an appeal waiver.”
Id. at 742. Lacey, despite having signed such an
appeal waiver, contends that he instructed his counsel to
appeal. Whether he did so is a contested issue of fact that
entitles him to an evidentiary hearing in the district
court[6] on his motion under 28 U.S.C. § 2255.
See Aron v. United States, 291 F.3d 708, 715 (11th
Cir. 2002).
(Id. (footnote added)). And, on April 12, 2019,
Chief United States District Judge Kristi K. DuBose referred
this matter to the undersigned to conduct an evidentiary
hearing on Lacey's claim of ineffective assistance of
counsel on account of defense counsel's failure “to
file a Notice of Appeal as requested.” (Doc. 286, at
2).
An
evidentiary hearing was conducted on July 23, 2019.
(See Docs. 291-92.) During this hearing, only Adrian
Lacey testified. (See id.) Lacey testified that
immediately following his sentencing on November 14, 2014, a
proceeding during which certain enhancements were applied and
Petitioner received a 106-month sentence (following his
receipt of a 48-month downward departure for his
cooperation)[7] and during which he was advised by the
Court that he had fourteen (14) days to file a notice of
appeal (see Doc. 255, at 13-14 (“THE COURT: .
. . You have 14 days to file your notice of appeal. And, Mr.
Lacey, you need to talk with your attorney about what your
appeal rights are. If you choose not to appeal, then you need
to file a Notice of Non-Appeal. Do you understand? THE
DEFENDANT: Yes, ma'am.”), [8] he spoke with his attorney,
Sid Harrell, in the “bullpen” or
“hold” and told him (Harrell) to appeal his
sentence. Lacey specifically recalled during
cross-examination that he told Harrell to appeal the sentence
because he did not get credit for the time served when he was
transferred back to this District, pursuant to a writ, to
answer the underlying criminal charges in this case, but,
instead, his sentence was simply ordered to run concurrent to
the sentence in Criminal No. 12-0046-KD, [9] from the date of
sentencing.[10]According to Lacey, his attorney handed
him a form and told him to sign it and that the sentence was
going to be appealed. Lacey stated that he did not actually
read the form he signed, but simply signed it where indicated
by Harrell, because he was “discombobulated” by
the sentence (106 months) he received and the Court's
failure to give him credit for some of the time he had
already served with respect to Criminal No. 12-0046-KD. The
form signed by Lacey on November 14, 2014, [11] of course,
was a Notice of No. Appeal (see Government's
Exhibit 1), on which the following language appears before
Petitioner's signature: “I have been advised by the
Court and by my attorney of my right to appeal my conviction
and sentence. I have consulted with my attorney, who has
explained the advantages and disadvantages of taking an
appeal. I have had sufficient time to consider my options and
require no further explanation. After consideration, it is my
desire to inform the Court that I do not wish to take an
appeal.” (Id.)[12].
Lacey
testified that he told his mother and the mother of his
daughter that he wanted to appeal a “little”
after sentencing but could not recall the exact date(s) he
revealed this information to these individuals. According to
Petitioner, his mother called Harrell about the appeal and
was told that the appeal was being worked on[13] and that he
wrote Harrell a letter about the appeal.[14] It was not
until five or six months after sentencing, by Lacey's
estimation, [15] that he learned from the mother of his
daughter that she was told by Harrell's office that he
signed a notice of non-appeal. It was Lacey's testimony
that after learning this information from his daughter's
mother, [16] he took some time to research his case
before filing his motion to vacate.
As the
record reflects, Petitioner initially filed his motion to
vacate on or about June 29, 2015 (see Doc. 246,
Attached Memorandum in Support of § 2255 Motion, at 8)
and because he did not file his motion to vacate on this
Court's form, he complied with this Court's order
dated July 31, 2015 (Doc. 250) and filed his motion to vacate
on this Court's form on August 12, 2015 (Doc. 251, at
13). Both in his initial pleading (Doc. 246) and in his
motion filed on this Court's § 2255 form (Doc. 251),
Lacey asserted only that his attorney was constitutionally
ineffective in failing “to object to the PSI findings
of Double Jeopardy and [in] advis[ing] petitioner he had
no appealable issues to object to at sentencing or
on direct appeal.” (Compare Doc. 246,
Attached Memorandum in Support of § 2255 Motion, at 1
with Doc. 261, Attached Memorandum in Support of
§ 2255 Motion, at 1 (emphasis supplied)). It was not
until October 21, 2015, that Lacey asserted for the first
time that his attorney provided ineffective assistance in
failing to file a direct appeal after being told by Lacey
that he wished to appeal his sentence. (See Doc.
258, at 3 (motion to supplement dated October 21, 2015)).
Petitioner avers that his counselor Sid Harrell failed to
file a direct appeal after Lacey told counselor that he
wished to appeal his sentence. See Roe v.
Flores-Ortega, 528 U.S. 470, 145 L.Ed.2d 985 (2000).
Counselor had petitioner sign a notice to appeal form right
after being sentenced. However[, ] when petitioner called to
the Eleventh Circuit, the clerk told him he had no pending
NOA.
Petitioner told counselor that the court did not give him
time served for being in the county jail while on a federal
writ.
Counselor told petitioner that he would see that it gets
taken care of and asked the petitioner to sign a form. This
was done after sentencing in the holding cell at the
courthouse.
Petitioner told his kids[‘] mother and his own mother
that his attorney was going to file to get him the 10 months
he had already served prior to being sentenced. Counselor
failed to file a direct appeal after the petitioner advised
him he did not get time served while being on federal writ.
Had counselor filed the Notice of Appeal after petitioner
signed the form, petitioner could have later amended his
direct appeal with the Double Jeopardy or Double Counting
claim.
Petitioner suffered prejudice as a result of counselor's
deficient performance.
(Id. at 1-3).
CONCLUSIONS
OF LAW
Section
2255 reads, in relevant part, as follows: “A prisoner
in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground
that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
the sentence.” 28 U.S.C. § 2255(a). The scope of
the evidentiary hearing in this case was limited to whether
Lacey is entitled to relief under Garza v. Idaho,
supra, on the basis of that he has established that he
expressly instructed his attorney, Sid Harrell, to file a
notice of appeal. In other words, because Garza
presumes prejudice where an attorney performs deficiently in
failing to file a notice of appeal despite the
...