United States District Court, W.D. Virginia, Lynchburg Division
MEMORANDUM OPINION and ORDER ADOPTING REPORT AND RECOMMENDATION
NORMAN K. MOON, District Judge.
Brad Christopher Hull, a federal inmate proceeding without counsel, filed this action under 28 U.S.C. § 2255, alleging 37 claims of ineffective assistance of trial counsel and six claims of ineffective assistance of appellate counsel. The United States filed a motion to dismiss, and I referred the matter to United States Magistrate Robert S. Ballou for proposed findings of fact and recommendations for disposition. The Magistrate Judge filed a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), finding that Hull's claims are without merit and recommending that the § 2255 motion be dismissed. Objections have been filed and, for the reasons stated herein, I will overrule the objections, adopt the Report and Recommendation, and grant the Government's motion to dismiss.
The Magistrate Judge appointed counsel to represent Hull regarding Claim 8, and the Magistrate Judge conducted an evidentiary hearing. Claim 8 asserted that Hull's trial counsel advised Hull that he would receive the same sentence whether he pleaded guilty or went to trial, and that Hull's prior conviction could not be used as a basis to double his statutory minimum sentence.
Hull's appointed counsel filed the following objection:
Mr. Hull and his trial counsel both testified at the evidentiary hearing in this matter. Trial counsel, Melvin Hill, testified that he had very little recollection of this case except that Mr. Hull wanted to go to trial. Mr. Hill did not recall what he told Mr. Hull about the plea agreement offered by the government or what he told him about the sentencing information. Mr. Hull had a clear recollection that Mr. Hill informed him the sentencing information was unconstitutional and would not stand. Mr. Hull also specifically remembered his trial counsel telling him the plea agreement would not offer him any benefit at sentencing and that he had nothing to lose by going to trial.
The Report ignored the testimony of witnesses and instead relied upon a note found in the file of Mr. Hull's trial counsel which read, "Advised CL G plea offer-would face 20-year sentence if convicted". Although counsel was representing Mr. Hull in the federal action and simultaneously in a pending state court felony, the Report interpreted this note to mean that trial counsel fully informed Mr. Hull that he faced a mandatory minimum of twenty years in the federal criminal action if he rejected the plea offer.
The Report adds the statement of trial counsel that Mr. Hull wanted to go to trial to the note to conclude Mr. Hull would have rejected the plea agreement even if counsel had properly informed him of the consequences. There is simply no basis in the record for this assumption. Mr. Hull's own testimony was that he would have considered the advice of counsel and made the decision that was in his best interest.
The essence of counsel's objection is that the Magistrate Judge "ignored the testimony of witnesses" and that "[t]here is simply no basis in the record for" the Magistrate Judge's conclusions. However, the Magistrate Judge explicitly took "into account the testimony from the evidentiary hearing, the extent of detail and coherent nature of the testimony, [his] observation of the witnesses, and the degree to which the testimony is consistent or inconsistent with, or corroborated by, other evidence in the case."
The Magistrate Judge undertook an evidentiary hearing on Claim 8
to determine whether Hull's counsel rendered ineffective assistance by erroneously advising him (1) to reject the government's plea offer because he would receive the same sentence whether he plead guilty or went to trial, and (2) that his prior conviction would not be used as a basis to double his mandatory minimum sentence.
At the hearing, "Hull and his former trial counsel, Melvin Hill, testified about their trial strategy and review of the government's offered plea." Using "[t]he testimony of both witnesses, " the Magistrate Judge then "created the following summary of events surrounding the government's offered plea":
The United States Attorney's Office sent a letter to trial counsel on July 3, 2006, notifying him that Hull's sentencing exposure from the indictment included a mandatory minimum of ten years and that his estimated sentencing exposure ranged from 151 to 188 months without prior acceptance of the plea, or 108 to 135 months with acceptance of the plea. Dkt. No. 238-2, p. 1-2. The letter also stated that the government intended to file an § 851 Sentencing Information if they went to trial, which would increase Hull's mandatory minimum sentence to twenty years. Dkt. No. 238-2, p. 2. Trial counsel acknowledged at the evidentiary hearing that this letter stated Hull faced a more severe sentence if he pursued trial. Dkt. No. 240, p. 13. In a September 7, 2006 letter, the [government's counsel] asked trial counsel to speak with him and reiterated he would not file the § 851 Sentencing Information until after they spoke. Dkt. No. 238-2, p. 3. The government sent a third letter to trial counsel dated October 11, 2006-roughly five weeks before trial. Dkt. No. 238-2, p. 5-6. [Government's counsel] again outlined Hull's sentencing exposure. Dkt. No. 238-2, p. 5-6. The government wrote that Hull's prior drug felony conviction would increase his mandatory minimum sentence to 20 years, and that they would recommend a guideline range of 292 to 365 months based on Hull's prior drug trafficking trips to California and "the fact that Hull cooked the cocaine into crack." Dkt. No. 238-2, p. 6. Trial counsel sent a letter to Hull dated October 12, 2006 that included the government's plea offer and confirmed an appointment with him for October 17, 2006. Dkt. No. 238-1, p. 1. At the evidentiary hearing, trial counsel stated that the purpose of the meeting would have been "[t]o review the case in general, or to review the proposed plea agreement." Dkt. No. 240, p. 12.
The events after trial counsel's letter to Hull are the subject of Hull's controversy, mostly as a result of lack of memory due to the age of the case. Trial counsel had very little recollection of his representation of Hull. Dkt. No. 240, p. 5. Although he did not remember he had received a plea offer, trial counsel was able to confirm his signature on the letter to Hull accompanying the government's offer. Dkt. No. 240, p. 5-7. Trial counsel remembered meeting with Hull at his office, but he did not remember any of the details of the conversation or whether it concerned the plea agreement. Dkt. No. 240, p. 5, 7. He could not recall any decisions or conclusions he made in Hull's case, or whether he discussed Hull's sentencing exposure if he pursued trial. Dkt. No. 240, p. 26-28. Despite trial counsel's lack of memory for much of his representation of Hull, he did recall that " Mr. ...