United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Joseph F. Bataillon Senior United States District Judge
This matter is before the court after an evidentiary hearing on defendant's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on May 29, 2015. Filing No. 80. This action was remanded from the Eighth Circuit Court of Appeals with directions to conduct an evidentiary hearing. See Filing No. 105.
The record shows that on June 14, 2011, Defendant appeared before this Court and pled guilty to Count I of an indictment charging him with conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine (actual), in violation of 21 U.S.C. § 846. Filing No. 66, Text Minute Entry; Filing No. 81, Change of Plea Transcript “Plea Tr.” at 15-16. During the hearing, the defendant acknowledged that the quantity of actual methamphetamine for which he was charged carried a mandatory minimum sentence of ten years. Id. at 7-8. He advised the Court that he was satisfied with the services his lawyer had given him in the matter. Id. at 7.
Defendant was sentenced on September 28, 2011, to the statutory mandatory minimum of 120 months incarceration to be followed by a 5 year term of supervised release and a $100 special assessment. Filing No. 73, Text Minute Entry; Filing No. 74, Judgement; Filing No. 82, Sentencing Hearing Transcript “Sent. Hr'g Tr.” at 7. Counts II and III were dismissed on motion by the government. Filing No. 82, Sent. Tr. at 8. The court specifically advised the defendant of his right to appeal and told the defendant he had 14 days to do so. Id. at 8. Franco was directed to talk to defense counsel Jerry Hug if he wanted to appeal and was informed that if he did not have enough money to pay for a lawyer or the cost of the appeal, he should talk to Mr. Hug, who would get the paperwork together. Id.
Franco filed a § 2255 motion to vacate his sentence in the district court on the ground that Hug's failure to file a notice of appeal, as requested, amounted to ineffective assistance of counsel in July 2012. See Filing No. 80. Attached to the motion was a letter, dated June 4, 2012, from the Clerk of Court for the United States Court of Appeals for the Eighth Circuit, acknowledging receipt of an inquiry regarding the status of Franco's appeal and informing him the no appeal had been filed. Id.
This court denied Franco's § 2255 motion, finding that the defendant had failed to meet his burden to show that he requested an appeal and counsel failed to comply with that request. Filing No. 94, Memorandum and Order at 3. The Eighth Circuit reversed, finding that the defendant was entitled to a hearing before the district court made factual determinations about his credibility. See Filing No. 105, Eighth Circuit Opinion at 4.
An evidentiary hearing was held on May 29, 2015. The defendant was represented by appointed counsel, Assistant Federal Public Defender Karen Shanahan. At the hearing, the defendant testified by telephone that he had been represented by attorney Jerry Hug in his criminal case. He stated that he entered a plea of guilty and had a plea agreement. He and his counsel reviewed the presentence investigation report. He was sentenced to 120 months on Sept. 28, 2011. He stated he was aware of his right to appeal after sentencing. He testified he had a conversation with Mr. Hug about an appeal right after the sentencing. He stated they were still in the courtroom when this happened. He testified he mentioned to Hug to file an appeal.
He testified there was no discussion about the merits of the appeal. He further testified he was not able to get ahold of Mr. Hug. He stayed in Omaha for a week or two and then he was sent to a Bureau of Prisons (BOP) facility. He testified he did not contact Hug by telephone after the sentencing. He testified he sent Hug a letter, but does not recall when and he did not retain a copy of the letter. He made no other attempts to communicate with Hug, but later wrote to the Court of Appeals inquiring as to the status of his appeal. The court takes judicial notice of a response from the Court of Appeals to that letter. Filing No. 80. After receiving that response from the Court of Appeals, he did not try to contact Mr. Hug.
Franco also stated that he understood that the lowest sentence he could receive in the case was 120 months. He also recalled that Hug told him there would be nothing to appeal if he were sentenced to 120 months. In response to that statement, he testified that he told Hug that his family said he should appeal and that he had to fight for his life if sentenced to ten years.
Attorney Jerry Hug testified that he has been licensed to practice law in Nebraska since 1996. His practice has concentrated on criminal defense in both state and federal courts. He has represented hundreds of criminal defendants.
Hug testified he was appointed as counsel to represent Cesar Franco after two attorneys withdrew. After he was appointed, he requested and received leave of court to file a motion to suppress evidence. He filed the motion and it was denied. He testified that thereafter there was some discussion about a plea agreement, but the defendant ultimately decided to plead without a written plea agreement. There was an oral agreement with the prosecutor to dismiss Counts II and III in exchange for a guilty plea to Count I. He stated that he recalled there were issues with drug quantity that might have affected Franco's advisory guidelines range and that they agreed that Franco would be better off without a written plea agreement because he would not have to waive any variance or departure issues if the presentence investigation report was unfavorable to Franco. Hug testified that at some point prior to the sentencing hearing he discussed with Franco the mandatory minimum sentence of 120 months.
Hug stated he specifically recalled talking to Franco immediately after the sentencing hearing and telling Franco that Hug was happy that Franco had been sentenced to the minimum and telling him that there were no matters for appeal. He did not recall the defendant telling him to file an appeal. He testified that if the defendant had asked him to file an appeal, he would have done so. He stated that, because in his judgment there were no meritorious grounds for appeal he would have filed an Anders brief. He also reaffirmed the statements in the affidavit earlier submitted to the court. See Ex. 1, Affidavit.
Hug identified Exhibit 2 as the Criminal Justice Act ("CJA") voucher he prepared in connection with his court-appointed representation of Franco. He stated he prepared the document in order to be paid. The bill is dated September 28, 2011, which was the date of Franco's sentencing hearing. He stated he signed and submitted the document that day. He testified he would not have prepared and submitted the billing statement if he had been asked to file an appeal because he would still have had work to do on the case, such as contacting the court reporter to request a copy of the sentencing hearing, filing a notice of appeal, and typically, meeting with the defendant. He also stated that if a client told him he ...