United States District Court, W.D. Virginia, Big Stone Gap Division
Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for United States.
John Thadieu Harris III, St. Paul, Virginia, for Defendant.
JAMES P. JONES, District Judge.
The defendant, proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, alleging, among other things, that his attorney failed to file a notice of appeal after the defendant asked him to do so. After conducting an evidentiary hearing on this claim and reviewing the record as to the defendant's remaining claims, I conclude that he is not entitled to relief under § 2255.
On December 19, 2011, Perry Roger Carter pleaded guilty, pursuant to a written Plea Agreement, to conspiracy to distribute controlled substances, possession of a firearm with an obliterated serial number, and possession of a short-barreled shotgun. Under the terms of the agreement, Carter stipulated that he should be sentenced based on specific drug amounts resulting in a Base Offense Level of 26 under U.S. Sentencing Guidelines Manual ("USSG") § 2D1.1, with a two-level enhancement for possessing a dangerous weapon. The Plea Agreement also included provisions waiving the right to appeal and the right to collaterally attack the conviction or sentence. In exchange, the government agreed to recommend a sentence within the applicable guideline range, to recommend a two-level reduction for acceptance of responsibility, and not to charge Carter with possession of a firearm in furtherance of a drug trafficking crime, which would have carried a five-year mandatory consecutive sentence.
Before accepting Carter's guilty plea, I questioned him to determine whether he understood the terms of the Plea Agreement and was entering a voluntary guilty plea. Carter stated that he was 54 years old, that he had an eighth-grade education, and could "read fair, " but did not spell well. (Guilty Plea Tr. 3-4, ECF No. 236.) He stated that although he was under a doctor's care for anxiety and was taking prescription medication for that condition and for back pain, the medicines did not affect his ability to understand the proceedings. He denied that he was under the influence of any other medication, drugs, or alcohol.
Carter affirmed that he had had an adequate opportunity to read and discuss the Plea Agreement with counsel before he initialed each page of the agreement and signed it, and stated that he was satisfied with counsel's representation. The prosecutor reviewed the terms of the agreement, the charges to which Carter was pleading guilty, the maximum sentences for each count, and the guidelines applications to which Carter had agreed. I expressly questioned whether Carter understood that, under the agreement, he was waiving his right to appeal and his right to collaterally attack the judgment, and he said, "Yes." ( Id. 18.) He denied that anyone had made any promise to him that was not contained in the Plea Agreement or that anyone had threatened him or tried to force him to plead guilty.
Carter assured me that he understood the elements the government would have to prove in order to convict him at trial, the consequences of his plea, the advisory nature of the sentencing guidelines, and the fact that his sentence might be more severe than any estimate that his attorney may have given him. Carter also did not dispute the government's evidence as summarized by the prosecutor. I found that Carter's guilty plea was knowing and voluntary and was supported by an independent basis of fact. Therefore, I adjudged him guilty of the offenses.
After preparation of a Presentence Investigation Report ("PSR"), I conducted a three-hour sentencing hearing on June 19, 2012. Defense counsel objected to the PSR's finding that Carter should receive an enhanced sentence for knowingly selling drugs to a minor and for playing a leadership role in the conspiracy. I sustained Carter's objection on the first issue, but denied it as to the second. I adopted the PSR's determination that Carter should receive a Base Offense Level of 26, increased by two levels for possessing a firearm and by four levels for a leadership role, then reduced by three levels for acceptance of responsibility, for a Total Offense Level of 29. This total, with Carter's Criminal History Category of III, resulted in an advisory custody range of 108 to 135 months. I sentenced Carter to 120 months in prison. No appeal was noted.
Carter thereafter filed this timely § 2255 action, which he later amended, alleging eight grounds for relief: (1) lack of jurisdiction; (2) ineffective assistance of counsel in (a) failing to argue sentencing factors; and (b) failing to file an appeal after being asked to do so; (3) inappropriate assignment of the "ringleader enhancement"; (4) improper calculation of criminal history points; (5) improper application of the firearms enhancement; (6) imposing a sentence more severe than warranted; (7) improper application of 21 U.S.C. §§ 841 and 846, which Congress allegedly had no authority to enact; and (8) imposing a sentence in violation of the Sixth Amendment as interpreted in Alleyne v. United States, 133 S.Ct. 2151 (2013).
The government filed a Motion to Dismiss, arguing that with the exception of Claim (2)(b), Carter's § 2255 claims should be denied on the record as waived, defaulted, or without merit. Carter responded, making the motion ripe for consideration. The government conceded, however, that an evidentiary hearing was necessary to resolve Carter's claim that his attorney failed to follow his instruction to note an appeal.
I took the Motion to Dismiss under advisement, appointed counsel for Carter, and conducted an evidentiary hearing on April 30, 2014. Carter testified, as did his former attorney. At the close of the hearing, I made findings of fact on the record (Hr'g Tr. 6, ECF No. 254) that Carter had not asked his attorney to note an appeal and that no circumstance in his case indicated that the attorney had a duty to discuss an appeal with Carter after sentence. See Roe v. Flores-Ortega, 528 U.S. 470, 477-80 (2000). Based on these findings, I ruled that Carter's Claim 2(b) was without merit and that he ...