United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
R. Zwart United States Magistrate Judge
matter is before the court on Defendant's motion to
vacate under 28 U.S.C. § 2255. Pursuant to Judge
Gerrard's memorandum and order, (Filing No. 47),
the sole issue is whether defense counsel provided
ineffective assistance of counsel by failing to file a
requested notice of appeal. Because resolution of this issue
required a credibility determination, United States v.
Taylor, 258 F.3d 815, 818 (8th Cir. 2001), an
evidentiary hearing was held on Defendant's claim before
the undersigned magistrate judge on January 22, 2018.
Defendant appeared in person and was represented by appointed
counsel during the hearing. For the reasons discussed below,
Defendant's motion should be denied.
April 20, 2016, an indictment was filed against Defendant
alleging he knowingly received and distributed child
pornography through the use of interstate commerce in
violation of 18 U.S.C. 2252A(a)(2). (Filing No.
1). A written Rule 11(c)(1)(C) plea agreement was
offered to Defendant. Under the terms of that proposed
agreement, Defendant would agree to serve a 70-month prison
sentence. Defense counsel discussed the plea agreement with
Defendant, and Defendant chose to reject it. (Filing No.
24, at CM/ECF pp. 13-14). Defendant was hoping for a
counsel delayed setting a change of plea hearing so that
Defendant would receive the benefit of anticipated sentencing
law changes scheduled to become effective on November 1,
2016. Defendant completed a Petition to Enter a Plea of
Guilty on August 4, 2016. (Ex.1), and his change of plea
hearing was held on August 11, 2016. The guilty plea was
accepted on September 6, 2016, (Filing No. 25), with
sentencing scheduled for November 10, 2016.
preparation for the sentencing hearing, the court's
probation office prepared and distributed a draft presentence
investigation report on September 27, 2016, which indicated
the guideline range was 210 to 240 months in prison. (Ex. 2
at p. 14). On October 20, 2016, defense counsel moved for a
variance from the sentencing guidelines, requesting a
sentence of 60 months in prison. (Filing No. 27).
With the changes to the sentencing law, on November 4, 2016,
the court's probation office recommended a sentence of
151 months in prison. (Ex. 3 at p. 3). Ultimately, Defendant
received a 68-month sentence. (Filing No. 41).
close of the sentencing hearing, Defendant was advised of his
right to appeal. He signed the written notice of his appeal
rights. (Filing No. 40).
counsel spoke with Defendant and his wife both before and
after the sentencing hearing. During the discussion after the
hearing, defense counsel explained that where, as in this
case, the sentencing judge imposes a lower sentence in
variance from the sentencing guidelines, an appeal would
serve no purpose. That is, while the Eighth Circuit would not
increase Defendant's sentence on appeal, it also would
not lower the sentence any further.
never asked defense counsel to file an appeal, either during
their post-sentencing meeting or within 14 days following the
entry of judgment.
failure to file a notice of appeal when so instructed by the
client constitutes ineffective assistance of counsel for
purposes of section 2255.” Estes v. United
States, 883 F.2d 645, 648 (8th Cir. 1989). A defendant
seeking § 2255 relief “need not show that he was
prejudiced by his attorney's failure to file a timely
notice of appeal.” Holloway v. United States,
960 F.2d 1348, 1357 (8th Cir. 1992). However, the attorney
must have been aware of the client's desire to appeal.
“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.”
United States v. Luke, 686 F.3d 600, 606 (8th Cir.
2012) (citing Yodprasit v. United States, 294 F.3d
966, 969 (8th Cir. 2002)(quoting Barger v.
United States, 204 F.3d 1180, 1182 (8th Cir. 2000)).
counsel explained to Defendant that an appeal of the sentence
would prompt a written and public decision explaining the
basis for the sentence. Defendant did not want this public
exposure of the conduct underlying his plea of guilty.
Defense counsel stated an appeal would not result in a lower
sentence; advice that was fully consistent with Eighth
Circuit law. “Where, as here, a district court varies
below a properly calculated Guidelines sentence, it is
‘nearly inconceivable that the court abused its
discretion in not varying downward still further.'”
United States v. Lundstrom, No. 16-1860, 2018 WL
475122, at *15 (8th Cir. Jan. 19, 2018) (quoting United
States v. Deering, 762 F.3d 783, 787 (8th Cir. 2014)).
explaining Defendant's appeal rights, defense counsel
believed and noted in his records that Defendant did not want
to file an appeal. And Defendant himself testified that he
never specifically told his attorney to file an appeal. As
such, based on the credible and largely undisputed testimony,
Defendant has failed to show that his counsel provided
ineffective assistance by failing to file an appeal as
requested by Defendant.
THEREFORE HEREBY IS RECOMMENDED to John M. Gerrard, United
States District Judge, pursuant to 28 U.S.C. § 636(b),
that Defendant's motions to vacate, set aside, or correct
his sentence ...