United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge.
matter is before the court pursuant to defendant's motion
pursuant to 28 U.S.C. § 2255. Filing No. 82. The court
initially reviewed this case, and ordered the government to
file an answer addressing two issues: “(1) ineffective
counsel claims; and (2) prosecutorial misconduct
claims.” Filing No. 83, p. 2. The government filed its
answer. Filing No. 90. Thereafter, the court ordered a
hearing in this case. See Filing No. 95. The court
conducted a hearing on February 23, 2017. Defendant appeared
by phone. Counsel for the government and defendant's
former counsel, William Gallup, both appeared in person. The
court permitted the submission of evidence as well as oral
argument. The court received an amended Affidavit from Mr.
Gallup, Filing No. 86, a pleading from the defendant (which
was mailed to the court following the hearing), Filing No.
98, the sentencing transcript, Filing No. 87, the unofficial
plea transcript, and the petition to plead guilty, Filing No.
57. There was no plea agreement in this case. Hickman-Smith
argues he was denied his Sixth amendment right to effective
assistance of counsel during the pretrial and appellate
phases of his case.
October 22, 2014, the government filed a one count Indictment
charging Hickman-Smith with possession with intent to
distribute 280 grams or more of a mixture or substance
containing a detectable amount of cocaine base, also known as
“crack cocaine, ” a Schedule II controlled
substance, in violation of 21 U.S.C. 841(a)(1) and (b)(1).
(Filing No. 1).
Gallup filed a motion to suppress. The magistrate judge
recommended that this court deny the motion to suppress. Mr.
Gallup testified that defendant initially requested an appeal
following the magistrate judge's ruling on the hearing,
and Mr. Gallup appealed to this court. This court adopted the
magistrate's recommendation. Defendant contends that both
he and his girlfriend requested that his counsel, Mr. Gallup,
immediately appeal the order issued by this court denying
defendant's motion to suppress. Mr. Gallup further
testified that he told defendant that defendant could not
appeal directly to the Eighth Circuit from either the
magistrate judge's decision or this court's decision.
He also informed the defendant that such appeal could only
occur following the end of the case, after trial.
October 20, 2015, Hickman-Smith filed an untimely Notice of
Appeal. Filing No. 70. The Eighth Circuit Court of Appeals
dismissed his appeal on February 1, 2016, as untimely. Filing
No. 80. Hickman-Smith asserts he received ineffective
assistance when defense counsel failed to file a Notice of
Appeal on his behalf, even though instructed to do so.
Counsel denies he was ever asked to file an appeal.
court reviewed a draft of the plea colloquy which confirmed
the court's recollection of a specific conversation with
the defendant about waiving his right to appeal the
court's ruling on the suppression motion. During his plea
hearing, the court asked defendant if he understood that if
he pleads guilty there will not be a trial and he would no
longer be able to challenge the lawfulness of the evidence,
and defendant responded yes. The court also discussed the
motion to suppress with defendant and told him that he would
be giving up his right to appeal the court's denial of
his motion. Defendant indicated he understood.
defense counsel states that he informed defendant that:
the district court ruling could not be appealed to the Eighth
Circuit Court of Appeals and it could review the ruling only
if the Defendant proceeded to trial and was convicted. The
affiant repeated this to an inquiry by the defendant's
girlfriend when she inquired about the ruling.
(Filing No. 86, p. 1)
sentencing, Hickman-Smith was advised he had a right to
appeal his conviction and sentence and had to do so within 14
days of the court's Judgment. Filing No. 87, Sentencing
Transcript, p. 14. Again, Hickman-Smith asserts he received
ineffective assistance when defense counsel failed to file a
Notice of Appeal on his behalf, even though instructed to do
Counsel denies he was ever asked to file an appeal.
assertions are not enough to make a claim for ineffective
assistance of counsel, and the burden of proof lies with the
defendant. Barger v. United States, 204 F.3d 1180,
1181 (8th Cir. 2000). In order to prove his claim of
ineffective assistance, the defendant must establish his
counsel so grievously erred as to not function as the counsel
guaranteed by the Sixth Amendment, and his counsel's
deficient performance prejudiced his defense. Auman v.
United States, 67 F.3d 157, 162 (8th Cir. 1995) citing
Strickland v. Washington, 466 U.S. 668, 687 (1984).
“To show prejudice, [a defendant] must show a
reasonable probability that absent the alleged errors of
counsel he would have been found not guilty.”
United States v. Robinson, 301 F.3d 923, 925 (8th
Cir. 2002). “‘Prejudice' requires a
reasonable probability that the proceeding would have ended
in a different result without counsel's errors.”
Auman, 67 F.3d at 162. Where the claim is that
defense counsel “fail[ed] to file a notice of appeal
after being instructed to do so by his client[, ] . . . no
inquiry into prejudice or likely success on appeal [is]
necessary.” Barger, 204 F.3d at 1182.
“Nevertheless, for a petitioner to succeed, he must
show that he made his desire to appeal evident to his
attorney. A bare assertion by the petitioner that [he] made a
request is not by itself sufficient to support a grant of
relief, if evidence that the fact-finder finds to be more
credible indicates the contrary proposition.”
Yodprasit v. United States, 294 F.3d 966, 969 (8th
Cir. 2002) (citations omitted).
[the] defendant pleaded guilty, received the sentence
bargained for, and expressly waived some or all of his appeal
rights [ ] are highly relevant in determining ‘whether
a rational defendant would have desired an appeal or that the
particular defendant sufficiently demonstrated to counsel an
interest in an appeal.'” Parsons v. United
States, 505 F.3d 797, 799-800 (8th Cir. 2007) (quoting
Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). A
defendant waives his right to appeal, absent an express
preservation. United States v. Limley, 510 F.3d 825,
827 (8th Cir. 2007) (“A valid guilty plea is an
admission of guilt that waives all non-jurisdictional defects
and defenses.”). United States v. Stewart, 972
F.2d 216, 217-18 (8th Cir. 1992) (“Appellant's
failure to preserve his right to appeal by entering a
conditional guilty plea now precludes him from challenging
the validity of the search warrant. It is well established in
this Circuit that a defendant who pleads guilty waives all
nonjurisdictional defenses.”) (citing Hill v.
United States, 928 F.2d 303 (8th Cir. 1991)). “If
a defendant wishes to preserve his right to appeal, he should
enter a conditional plea of guilty, ‘reserving in
writing the right to have an appellate court review an
adverse determination of a specified pretrial motion.'
Fed.R.Crim.P. 11(a)(2).” Limley, 510 F.3d at
court finds that defendant failed to meet his burden on his
ineffective assistance claim and thus it shall be dismissed.
The defendant plead guilty. He waived his right to appeal the
suppression issue. The court specifically questioned him in
this regard during the plea hearing. The court finds his
counsel is credible in this regard, and defendant offered no
evidence to the contrary. The court has likewise reviewed the
claims regarding prosecutorial misconduct and all other
claims and finds they are frivolous and without merit.
IT IS ORDERED THAT defendant's claim for relief pursuant
to 28 U.S.C. § 2255, Filing No. 82, is denied. A
separate judgment will be ...