United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND FINAL ORDER
REBECCA BEACH SMITH, Chief District Judge.
This matter comes before the court on the Petitioner's pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Motion"), filed on June 20, 2013.
I. PROCEDURAL HISTORY
In a Memorandum Order entered March 24, 2014, the court denied the Petitioner's Motion on all claims except Ground One, which alleges that the Petitioner received ineffective assistance of counsel when her attorney, Tyrone Johnson, did not appeal her sentence, despite her request to do so. Because an attorney's failure to file an appeal, despite waiver by a defendant, may nevertheless be ineffective assistance of counsel, United States v. Poindexter , 492 F.3d 263 (4th Cir. 2007), the court granted the Petitioner thirty days to develop the factual basis for her claim. See Mem. Order at 15. The court advised the Petitioner that she could sustain the claim by filing "a sworn statement, under penalty of perjury, that she specifically and unequivocally asked Mr. Johnson to file a notice of appeal, and describe the facts and circumstances of such request." Id . On April 14, 2014, the Petitioner filed a timely response to the Memorandum Order, including a sworn statement. The final claim is now ripe for review.
A. The Petitioner Did Not Request a Timely Appeal
The Petitioner argues as Ground One that she received ineffective assistance of counsel because she allegedly asked Mr. Johnson to file a notice of appeal, and he did not do so. Mot. at 5. Her filings were not clear as to when she made the request of her attorney and whether it was an unequivocal request.
"[A]n attorney renders constitutionally ineffective assistance of counsel if he fails to follow his client's unequivocal instruction to file a timely notice of appeal even though the defendant may have waived his right to challenge his conviction and sentence in the plea agreement." Poindexter , 492 F.3d at 265 (emphasis added). Although Poindexter does not require a petitioner to demonstrate that an appeal would be meritorious, id. at 269, or even advisable, id. at 273, it does place a burden on her to demonstrate that she provided unequivocal instructions to her counsel to file a timely notice of appeal. See id. at 265, 273.
In general, in criminal sentencings like the one at issue here, a notice of appeal must be filed within fourteen days after entry of judgment. Fed. R. App. P. 4(b)(1)(A). The court may extend the time to file a notice of appeal by no more than thirty days if, within thirty days after the time to file the notice of appeal has expired, the court finds excusable neglect or good cause. Fed R. App. P. 4(b)(4).
In her sworn response to the court's Memorandum Order, the Petitioner attaches a letter dated October 5, 2012, which she alleges she sent to her attorney, and which indicates that she is "interested in filing a direct appeal, " but has been unable to "properly request this" due to his "lack of communication." Resp. to Mem. Order at 3. She also attaches a letter to the court dated November 19, 2012, in which she mentions that her mother tried several times to contact her attorney, with no response from him. Resp. to Mem. Order at 4.
The judgment the Petitioner wished to appeal was entered on July 5, 2012. Any notice of appeal filed after July 19, 2012, would have been untimely. See Fed. R. App. P. 4(b)(1)(A). Even if the court had found excusable neglect or other good cause, which it did not, it could not have extended the deadline beyond August 19, 2012. See Fed R. App. P. 4(b)(4). The Petitioner's letter to her attorney was well after the time to appeal had expired. Consequently, the Petitioner's letter cannot constitute an "unequivocal instruction to file a timely notice of appeal." Poindexter , 492 F.3d at 265.
B. Absence of Consultation Warrants No Relief
The court also considers whether the Petitioner has articulated a viable claim that Mr. Johnson rendered ineffective assistance of counsel by failing to consult with the Petitioner after the sentencing hearing. The court once again construes the Petitioner's assorted pleadings liberally.
To prevail on a claim of ineffective assistance of counsel, a petitioner must show both that counsel's performance "fell below an objective standard of reasonableness, " and that the petitioner was thereby prejudiced, meaning that in the absence of such deficient performance, "the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 688, 694 (1984). The first prong of Strickland requires counsel to consult with the client about the decision to file an appeal "when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Roe v. Flores-Ortega , 528 U.S. 470, 480 (2000). Reviewing courts ...