Lacey v. United States

          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 ...