United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND FINAL ORDER
REBECCA BEACH SMITH, District Judge.
This matter comes before the court on the Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Motion for Habeas Corpus"), filed on June 24, 2013, ECF No. 94, and Memorandum in Support, filed on August 12, 2013. ECF No. 107. For the reasons stated herein, the remaining claim in the Motion for Habeas Corpus, Ground One: ineffective assistance of counsel for failure to file a notice of appeal, is DISMISSED and the Motion for Habeas Corpus is DENIED in its entirety.
I. Procedural History
On March 22, 2012, the Petitioner, pursuant to a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C),  pled guilty to Counts One, Five, and Six of an eight-count Indictment: Count One, which charges him with Conspiracy to Obstruct, Delay and Affect Commerce by Robbery, in violation of 18 U.S.C. § 1951(a); Count Five, which charges him with Possess, Use, Carry and Brandish a Firearm During a Crime of Violence and in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A); and Count Six, which charge him with Possess, Use, Carry and Brandish a Firearm During a Crime of Violence and in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A) and 2. See Plea Agreement Hearing, ECF No. 38. In the Plea Agreement, the Petitioner waived his right to appeal his conviction and sentence at paragraph six. See Plea Agreement ¶ 6, ECF No. 39. During his plea colloquy on March 22, 2012, the Petitioner stipulated to, initialed, and signed the Plea Agreement and Statement of Facts, which were filed in open court on that same day. The magistrate judge accepted the Petitioner's plea. See Order Accepting Plea, ECF No. 42. Nothing in the record before the court shows that the Petitioner did not understand the contents of his Plea Agreement. A presentence investigation report ("PSR") was prepared on May 21, 2012, and an addendum was filed on June 18, 2012. ECF Nos. 43, 47. The Petitioner did not file any objections to the PSR. See PSR at A-1.
On June 27, 2012, the court adjudged the Petitioner guilty and sentenced him to four hundred twenty-one (421) months imprisonment followed by five (5) years of supervised release. See J., ECF No. 60. The Petitioner did not appeal his conviction, although he now claims that he asked defense counsel to do so. See Mem. Supp. at 5; Pet'r's First Aff. at 1, ECF No. 152; Pet'r's Revised Aff. at 1, ECF No. 154.
The Petitioner filed the pro se Motion for Habeas Corpus on June 24, 2013, alleging numerous grounds for relief. By Order of November 6, 2013, ECF No. 120, the court directed the United States and Mr. Kimball and Ms. Katchmar (collectively, "defense counsel") to file responsive pleadings to the Petitioner's Motion for Habeas Corpus, which defense counsel did on January 6, 2014, see Defense Counsel Aff., ECF No. 124, and which the United States did on February 4, 2014. See Gov't's Mem. Opp'n, ECF No. 137.
On July 16, 2014, by Memorandum Order, the court dismissed all claims except Ground One: ineffective assistance of counsel for failure to file a notice of appeal. ECF No. 150. In that Memorandum Order, the court granted the Petitioner thirty (30) days to develop the factual basis for his claim by filing a sworn statement under penalty of perjury that he specifically and unequivocally asked Mr. Kimball and/or Ms. Katchmar to file a timely notice of appeal, and to describe the facts and circumstances of such request.
On August 4, 2014, the Petitioner filed an Affidavit in response to the court's Memorandum Order. See Pet'r's First Aff. In his First Affidavit, the Petitioner did not make a "sworn statement under penalty of perjury, " and he did not describe in detail the facts and circumstances of such a request. He simply stated that "following sentencing in the holding cell of the United States Marshal[s], I instructed counsel to file a notice of appeal in which he declined to follow my request." Id. at 1.
On August 13, 2014, the court issued an Order and directed the Petitioner to re-file his submission and sign and certify himself that the submission is a sworn statement made under penalty of perjury. Order, ECF No. 153. On August 28, 2014, the Petitioner re-filed his submission, in which he declared under penalty of perjury that he requested defense counsel to file a notice of appeal. Pet'r's Revised Aff. at 1.
In an Order dated September 11, 2014, the court granted a limited evidentiary hearing to determine whether, in fact, the Petitioner requested that defense counsel file a timely notice of appeal. ECF No. 155. Harry Harmon, Esquire, was appointed to represent the Petitioner at the hearing. ECF No. 157. On November 14, 2014, the court held an evidentiary hearing because the material fact in dispute, whether the Petitioner requested that Mr. Kimball and/or Ms. Katchmar file a timely notice of appeal, could not be resolved on the basis of contradictory affidavits before the court. The sole surviving claim in his Motion for Habeas Corpus, Ground One: ineffective assistance of counsel for failure to file a notice of appeal, is now ripe for review.
II. Ineffective Assistance of Counsel Standard of Review
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).
"[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." United States v. Poindexter, 492 F.3d 263, 265 (4th Cir. 2007) (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 him to demonstrate that he provided unequivocal instructions to his counsel to file a timely notice of appeal. See id. at 265, 273.
When it is unclear whether the Petitioner unequivocally instructed his attorney to file a timely notice of appeal, the court should hold an evidentiary hearing. See 28 U.S.C. § 2255(b) ("Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall... grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law with respect thereto."); United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir. 2000) (a hearing is required when a movant presents a colorable Sixth Amendment claim showing disputed material facts and a credibility determination is necessary in order to resolve the issue); see also United States v. Wright, 538 F.Appx. 237, 238 (4th Cir. 2013) (vacating the district court's order that denied the petitioner's motion under 28 U.S.C. § 2255, and remanding for an evidentiary hearing on claim of ineffective assistance of counsel ...