USA v. Richardson, et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA
VERSUS
DWAN RILEY
CRIMINAL ACTION
NO. 23-82
SECTION "L" (3)
REPORT AND RECOMMENDATION
Before the Court is the claim of ineffective assistance of counsel advanced in
Dwan Riley’s Motion to Vacate, Set Aside, or Correct a Sentence by a Person in
Federal Custody (R. Doc. 228). For the following reasons, it is recommended that
Riley’s claim of ineffective assistance of counsel be dismissed with prejudice.
I. 	Background
A grand jury indicted Riley on April 28, 2023.1 Pursuant to a plea agreement,
Riley pled guilty to one count of a superseding bill of information charging him with
conspiracy to distribute and possess with intent to distribute a quantity of heroine,
fentanyl, and cocaine hydrochloride in violation of 21 U.S.C. §§ 846 and 841(a)(1),
(b)(1)(C).2 Riley waived his right to appeal or contest his sentence.3
Riley’s sentencing hearing took place on May 9, 2024. As recently summarized
by the District Court:
1 R. Doc. 1.
2 R. Doc. 235 at 2.
3 R. Doc. 102.
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The Court granted two of Defendant’s requests at sentencing—one that
lowered the applicable Guidelines range, and one that applied a
downward departure to the Court’s sentence. First, Defendant objected
to the application of the career offender enhancement in the Final
Presentence Report (“PSR”), which caused his Guidelines range to be
151–188 months. R. Doc. 127 at 11–12. The Court granted his objection
and removed the career offender enhancement from his total offense
level, lowering it from a 29 to a 13 and thereby lowering the applicable
Guidelines range from 151–188 months to 33–41 months. R. Doc. 140
at 	3–8. 	Separately, 	the 	Court 	granted 	Defendant’s 	request 	for 	a
downward departure pursuant to U.S.S.G. § 5K2.23 because Defendant
had already served 30 months on a related state court conviction that
constituted relevant conduct. Id. at 8–10. Overall, however, the Court
sentenced Defendant to 120 months—an upward variance from the
“new” Guidelines range—because it found that a sentence within the
newly 	applicable 	Guidelines 	range 	did 	not 	take 	into 	adequate
consideration the history and characteristics of Defendant, including
his criminal history and the nature of the instant offense. Id.
R. Doc. 235 at 2.4 The appeal period expired and Riley’s conviction became final on
May 23, 2024.5
Riley filed a § 2255 petition on June 26, 2025,6 alleging in relevant part that
his attorney provided ineffective assistance of counsel by failing to appeal Riley’s
sentence.7 	After reviewing the parties’ briefing and the affidavit of Riley’s counsel,
the District Court concluded “that more fact-finding is necessary before it rules on
the merits of Riley’s § 2255 motion with respect to the ineffective assistance of counsel
argument.”8 In particular, the District Court noted that there was insufficient
4 The District Court originally pronounced a 120-month sentence, but adjusted it to
90 months after remarks by Riley’s counsel. R. Doc. 140 at 20–22.
5 R. Doc. 235 at 2.
6 The District Court construed the petition as timely for reasons set forth in its
October 2, 2025 Order. R. Doc. 235 at 3–4.
7 R. Doc. 235 (citing R. Doc. 228).
8 Id. at 8.
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evidence in the record to determine whether Riley asked his counsel to file a notice of
appeal 	and 	whether 	counsel’s 	performance 	was 	deficient 	under 	the 	standard
enumerated in Roe v. Flores-Ortega, 528 U.S. 470 (2000). Accordingly, the District
Court referred the ineffective assistance of counsel claim to the undersigned for an
evidentiary hearing and appointed counsel to represent Riley in the proceeding.9
II. 	Law and Analysis
A. 	28 U.S.C. § 2255
Pursuant to 28 U.S.C. § 2255(a), a federal prisoner serving a court-imposed
sentence “may move the court which imposed the sentence to vacate, set aside or
correct the sentence.” Section 2255(a) provides a prisoner in custody with four
grounds upon which relief may be granted: (1) “that the sentence was imposed in
violation of the Constitution or laws of the United States”; (2) “that the court was
without jurisdiction to impose such sentence”; (3) “that the sentence was in excess of
the maximum authorized by law”; or (4) that the sentence “is otherwise subject to
collateral attack.” 28 U.S.C. § 2255(a). “Review under § 2255 ordinarily is limited to
questions of constitutional or jurisdictional magnitude.” United States v. Scruggs, 691
F.3d 660, 666 (5th Cir. 2012) (internal citations omitted); see Hill v. United States,
368 U.S. 424, 428 (1962).
The defendant bears the burden of establishing his claim of error by a
preponderance of the evidence. Wright v. United States, 624 F.2d 557, 558 (5th Cir.
1980). If the court determines that the prisoner is entitled to relief, it “shall vacate
9 Id. at 9.
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and set the judgment aside and shall discharge the prisoner or resentence him or
grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C.
§ 2255(b).
B. 	Ineffective Assistance of Counsel
The Sixth Amendment guarantees “reasonably effective” legal assistance. See
U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 687 (1984). In
Strickland, the Supreme Court established a two-prong test for evaluating claims of
ineffective assistance of counsel. 466 U.S. at 687. To show ineffective assistance, the
defendant must prove (1) counsel’s representation fell below an objective standard of
reasonableness, and (2) such deficient performance prejudiced the defendant. Id.
In Roe v. Flores-Ortega, the Supreme Court addressed how the Strickland test
applies in the context of counsel’s failure to file an appeal when the defendant has
not clearly conveyed his wishes regarding an appeal. 528 U.S. 470 (2000). “[T]he first
Strickland prong begins with the question whether counsel consulted with the
defendant regarding an appeal.” United States v. Cong Van Pham, 722 F.3d 320, 323
(5th Cir. 2013) (internal quotations and citations omitted). If counsel consulted with
the defendant, the performance is deficient only if counsel fails to follow the
defendant’s express instructions relative to the appeal. Id. at 324. “If, however,
counsel failed to consult with the defendant about an appeal, then the question is
whether that failure was unreasonable because it breached the duty to consult.” Id.
“Counsel has a constitutionally imposed duty to consult with the defendant about an
appeal when there is reason to think either (1) that a rational defendant would want
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to appeal (for example, because there are non-frivolous grounds for appeal), or (2)
that this particular defendant reasonably demonstrated to counsel that he was
interested in appealing.” Id.
Under Flores-Ortega, a defendant may satisfy the prejudice prong of the
Strickland test by showing that, but for counsel’s deficient failure to consult with him
about an appeal, there is a reasonable probability that he would have timely
appealed. 528 U.S. at 471. “The key requirement here is that the counsel’s deficient
performance 	actually 	caused 	the 	defendant’s 	forfeiture 	of 	a 	direct 	appeal—if
defendant cannot show this causation, he would not be prejudiced and thus not be
entitled to relief.” R. Doc. 235 at 6 (citing id. at 484). “[E]vidence that there were
nonfrivolous grounds for appeal or that the defendant in question promptly expressed
a desire to appeal will often be highly relevant in making this determination.” Flores-
Ortega, 528 U.S. at 472. A defendant is not required, however, to show that his appeal
would likely have had merit. Id. at 486. The prejudice prong test applies even when
a defendant has waived his right to direct appeal and collateral review. United States
v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007).
III. 	Analysis
A. 	Evidentiary Hearing
Riley 	and 	his 	counsel10 both 	testified 	at 	the 	evidentiary 	hearing. 	It 	is
undisputed that Riley’s counsel did not confer with him after sentencing relative to
10 References herein to “counsel” are to Riley’s former counsel Jeffrey Sandman, who
represented him at the sentencing hearing. Riley was represented by separate
counsel at the hearing on the § 2255 petition.
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the possibility of appeal and that Riley did not instruct counsel to file an appeal.11
Thus, the relevant inquiry is whether: (1) Riley reasonably demonstrated to counsel
that he was interested in appealing or (2) a rational defendant would want to appeal.
Flores-Ortega, 528 U.S. at 471. As set forth below, Riley’s claim satisfies neither
standard.
Testimony from counsel and evidence of statements made by Riley shortly
after sentencing demonstrate that Riley was very satisfied with the outcome of his
sentencing hearing. The day after sentencing, Riley placed a phone call to his child’s
mother and stated, “everything my lawyer, all my arguments, I won, you heard he
kept saying ‘granted, granted’,” that his lawyer “put up good arguments,” and “did a
damn good job.”12 On the same day, Riley called his mother and told her that his
lawyer “fought his ass off,” “did his thing,” that “a lot of people saying ‘man your your
lawyer good’,” and “originally, I would have been looking at [] fifteen years.”13 Riley’s
testimony that he only made those statements to comfort his family after his
sentencing14 was not credible given the content of the telephone recordings and
Riley’s demeanor on the stand. There is no evidence that Riley indicated interest in
an appeal to his counsel, and his statements to third parties confirm he had no such
interest.
11 R. Doc. 79:12–14.
12 Government Exhibit 2; R. Doc. 260 at 23:2–24:1; R. Doc. 257.
13 Government Exhibit 3; R. Doc. 260 at 22:11–23; R. Doc. 257.
14 R. Doc. 260 at 22:11–24:1, 35:8–11.
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Riley also expressed satisfaction with his sentence to his counsel the day after
the deadline to appeal expired. On May 24, 2024, Riley called Sandman to confirm
the length of time he would have to serve on his sentence.15 During that call,
Sandman stated that Riley’s sentencing was a “really good result,” to which Riley
responded, “hell yeah.”16 Sandman then continued, “I think we really really couldn’t
have asked for much more from the judge, he really did us a solid.”17 Riley responded,
“man that was great, man. I’m I’m very impressed. I couldn’t have asked for nothing
better, couldn’t have asked for nothing better. You did a wonderful job, man,” and
then “yah I was impressed, so but I’m, you know, fine with everything, I was just
double checking.”18 Although Riley maintains that his compliments to his counsel
were sarcastic,19 the Court does not find this explanation credible. Similarly, the
Court does not find Riley’s representations that he was pleased with his counsel’s
representation but not with the sentence to be believable.20
The Court did find credible, however, Riley’s testimony that his desire to
appeal stemmed from learning that his sentence—the first imposed in the case—was
longer 	than 	that 	of 	his 	co-defendants.21 	Riley’s 	co-defendants, 	however, 	were
15 R. Doc. 260 at 58:19–25, 59:18–24.
16 Government Exhibit 4; R. Doc. 260 at 24:5–13, 24:24–25:2.
17 Government Exhibit 4.
18 Id.
19 Id.at 35:17–21.
20 Id. at 25:3–5, 28:7–11.
21 Id. at 34:6–14.
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sentenced on September 19, 2024,22 	November 21, 2024,23 and February 6, 2025.24
Thus, the facts that prompted Riley’s dissatisfaction with his sentence arose long
after the expiration of the May 23, 2024 deadline to appeal. See Fed. R. App. P.
4(b)(1)(A) (providing that a defendant’s notice of appeal in a criminal case must be
filed in the district court within 14 days of entry of judgment).
B. 	Riley’s Ineffective Assistance of Counsel Claim
Riley claims that he was denied effective assistance of counsel. Given that
counsel did not consult with Riley relative to an appeal, Riley did not request an
appeal, and Riley demonstrated satisfaction with his sentence, Strickland’s first
prong requires Riley to show that “a rational defendant would want to appeal (for
example, because there are non-frivolous grounds for appeal)” such that his counsel
had a duty to consult with Riley regarding the possibility of an appeal. In post-hearing
briefing, Riley emphasizes that the sentence he received (90 months) was more than
double the top of the guidelines range (33–40 months).25 That range, however, reflects
the effectiveness of Riley’s counsel in advocating on his behalf.26 	Prior to the
sentencing hearing, the range had been calculated as 188–235 months. The Supreme
Court’s analysis in Flores-Ortega indicates that counsel’s performance was not
deficient under these circumstances.
22 R. Doc. 185.
23 R. Doc. 199.
24 R. Doc. 219.
25 R. Doc. 263.
26 At sentencing, the District Court noted that it had received “extensive and helpful
memos and cases.” R. Doc. 140 at 3:5–7.
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In Flores-Ortega, the Supreme Court confirmed that counsel does not have a
constitutional duty to consult with a defendant about an appeal in every case:
For example, suppose that a defendant consults with counsel; counsel
advises the defendant that a guilty plea probably will lead to a 2 year
sentence; the defendant expresses satisfaction and pleads guilty; the
court sentences the defendant to 2 years’ imprisonment as expected and
informs the defendant of his appeal rights; the defendant does not
express any interest in appealing, and counsel concludes that there are
no nonfrivolous grounds for appeal. Under these circumstances, it would
be difficult to say that counsel is “professionally unreasonable,” as a
constitutional matter, in not consulting with such a defendant regarding
an appeal.
Roe v. Flores-Ortega, 528 U.S. at 479 (internal citations omitted). This hypothetical
scenario parallels Riley’s circumstances in many respects.
Counsel consulted with Riley about his initial guidelines and the “colorable
arguments” that may reduce it.27 Ultimately, Riley received a sentence that was
below even what his counsel had predicted as in the realm of realistic expectations.28
Riley and his counsel were very satisfied with the result. As Riley explained during
the recorded telephone call the day after his sentencing, counsel “put up good
arguments,” and “did a damn good job.”29 Further, counsel’s testimony confirmed that
there were no “nonfrivolous grounds for appeal.”30 Under these circumstances, it
would be “difficult to say,” at the very least, that Riley met Strickland’s first prong.
27 R. Doc. 260 at 46:22–25.
28 R. Doc. 260 at 50:4–10 (“So I was thrilled with how sentencing went. I had believed
then, I honestly –despite Mr. Riley’s testimony [at the § 2255 proceeding]—believe
today that he too was really excited by how that sentencing hearing went because we
couldn’t realistically have expected to do as well as we did ultimately receiving a
sentence in which Mr. Riley was likely to be home within about six years.”).
29 Government Exhibit 2; R. Doc. 260 at 23:2–24:1.
30 R. Doc. 260 at 53:9–11.
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See Flores-Ortega, 528 U.S. at 479. Riley’s inability to demonstrate prejudice,
however, obviates the need for further analysis.
“A court need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” 	Strickland, 	466 	U.S. 	at 	670. 	“If 	it 	is 	easier 	to 	dispose 	of 	an
ineffectiveness claim on the ground of lack of sufficient prejudice, [] that course should
be followed.” Id.
Riley essentially concedes that he cannot satisfy the prejudice prong of the
Strickland test given the evidence developed at the hearing.31 His own testimony
confirmed that the catalyst for his desire to appeal was the sentencing disparity
between him and his co-defendants. But his co-defendants’ sentencing hearings did
not commence until approximately four months after Riley’s deadline to appeal had
expired.32 Thus, Riley fails to demonstrate that he would have timely appealed under
the second prong of the Strickland test. Riley has not demonstrated that his counsel’s
allegedly deficient performance caused his forfeiture of a direct appeal. Accordingly,
Riley’s claim of ineffective assistance of counsel should be denied.
RECOMMENDATION
It is therefore RECOMMENDED that Riley’s claim of ineffective assistance
of counsel be DISMISSED WITH PREJUDICE.
A party’s failure to file written objections to the proposed findings, conclusions,
31 R. Doc. 263 at 1, 4–5.
32 R. Doc. 185.
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and recommendation in a magistrate judge’s report and recommendation within 14
days after being served with a copy shall bar that party, except upon grounds of plain
error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the district court, provided that the party has been served
with notice that such consequences will result from a failure to object. 28 U.S.C.
§ 636(b)(1); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996)
(en banc) superseded by statute on other grounds.
New Orleans, Louisiana, this 12 th day of March, 2026.
EVA J. DOSSIER
UNITED STATES MAGISTRATE JUDGE
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