USA v. Colding et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MATTHEW ADRIAN COLDING,
Defendant.
Case No. 3:17-cr-00054-TMB
ORDER ON MOTION TO VACATE,
SET ASIDE, OR CORRECT SENTENCE
UNDER 28 U.S.C. § 2255 [DKT. 146] AND
MOTION TO STAY
28 U.S.C. § 2255 MOTION OR VACATE
THE CONVICTION AND ALLOW AN
APPEAL TO PROCEED [DKT. 161]
I. 	INTRODUCTION
The matter comes before the Court on Petitioner Matthew Adrian Colding’s Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (the “Motion to Vacate”)1 and
Motion to Stay or Vacate the Conviction and Allow an Appeal to Proceed (the “Motion to Stay”).2
Colding is currently serving a 120-month sentence for a violation of 18 U.S.C. § 922(g): Felon in
Possession of a Firearm.3 In his Motion to Vacate, Colding claims he was given ineffective
assistance of counsel during critical stages of his case, in violation of his Sixth Amendment rights.4
Later, in his Motion to Stay, Colding requested the Court either: (1) stay proceedings on his Motion
to Vacate to allow him to attempt to obtain an affidavit from trial counsel to support his ineffective
assistance claims; or (2) assume Colding’s claim is true and vacate and reenter the Court’s
1 Dkt. 146 (Motion to Vacate)
2 Dkt. 161 (Motion to Stay).
3 See Dkt. 116 (Judgment).
4 Dkts. 146, 146-1 (Colding Declaration).
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judgment to allow an appeal to proceed.5 The Motions are now fully briefed and ripe for
resolution.6 For the following reasons, Colding’s Motion to Vacate is DENIED and Colding’s
Motion to Stay is DENIED.
II. 	BACKGROUND
On May 18, 2017, Colding was indicted for a violation of 18 U.S.C. § 922: Felon in
Possession of a Firearm.7 Attorney Darrel J. Gardner (“trial counsel”) had previously been
appointed to represent Colding.8 Initially, Colding pleaded not guilty.9 On August 3, 2018, Colding
changed his plea to guilty pursuant to a written Plea Agreement with the Government.10 In the Plea
Agreement, Colding purported to “waive all rights to appeal the conviction and sentence imposed
under this agreement, and will waive all rights to collaterally attack the conviction and sentence,
except on the grounds of ineffective assistance of counsel and the voluntariness of the plea.”11 The
Court entered its Judgment on August 20, 2018, sentencing Colding to 120 months of
incarceration, followed by three years of supervised release.12
5 Dkt. 161 at 1.
6 Dkts. 146, 158 (Response in Opposition), 161, 163 (Response in Opposition), 164 (Reply to
Response), 173 (Closing Argument Memorandum in Support of Motion to Vacate, Set Aside or
Correct Sentence), 175 (United States’ Closing Argument). Defendant also filed a supplemental
filing in reply to the United States’ closing argument. Dkt. 176. However, no responsive briefing
was ordered by the Court and, therefore, Defendant’s extraneous filing will not be considered.
7 Dkt. 22 at 2 (Indictment).
8 Dkt. 4 (Minute Entry for Initial Appearance).
9 Dkt. 32 (Minute Entry for Arraignment).
10 Dkts. 42 (Plea Agreement), 49 (Minute Entry for Change of Plea Hearing).
11 Dkt. 42 at 2.
12 Dkt. 116.
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On April 10, 2019, Colding, through counsel, filed the Motion to Vacate under 28 U.S.C.
§ 2255.13 Colding’s Motion to Vacate, supported by a Memorandum in Support of the Motion to
Vacate, Set Aside, or Correct Sentence (“Memorandum in Support”),14 raises two grounds for
relief: (1) trial counsel’s performance was unconstitutionally deficient for not correcting a
misstatement by the Court at the change of plea hearing;15 and (2) trial counsel rendered ineffective
assistance of counsel for not filing a notice of appeal despite the appeal waiver in Colding’s Plea
Agreement. 16
The Government opposes the Motion to Vacate.17 In its opposition, the Government argues
that the Court made no misstatements at the plea hearing.18 The Government further argues that
Colding’s trial counsel cannot be said to be deficient for failing to file a Notice of Appeal where
there is “not a scintilla of evidence petitioner requested an appeal.”19
On August 3, 2019, Colding filed the Motion to Stay.20 Colding argued that the intervening
Ninth Circuit decision in United States v. Fabian-Baltazar,21 issued on July 30, 2019, required the
Court to either assume without deciding that Colding’s claim regarding trial counsel’s failure to
13 Dkt. 146.
14 Dkt. 147 (Memorandum in Support).
15 Id. at 6–11.
16 Id. at 11–12.
17 Dkt. 158.
18 Id. at 10.
19 Id. at 12–14.
20 Dkt. 161.
21 931 F.3d 1216 (9th Cir. 2019).
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move forward on an appeal is true and vacate and reenter the judgment so that an appeal may
proceed or, alternatively, stay ruling on the Motion to Vacate and allow Colding to gather and put
on evidence as to whether he directed trial counsel to file a notice of appeal and whether trial
counsel adequately consulted Colding about a potential appeal.22
The United States filed a Response in Opposition to Defendant’s Motion to Stay or Vacate
Conviction and Allow Appeal to Proceed (“Opposition to Stay”) on August 5, 2019.23 The United
States argued that Colding has failed to allege that he ever requested his attorney file an appeal, or
that his attorney failed to consult with him regarding an appeal.24 Therefore, the United States
argued, an evidentiary hearing under Fabian-Baltazar was unnecessary.25
On the same day, Colding filed a Reply to Government’s Response to Motion to Vacate
Conviction and Allow an Appeal to Proceed or Stay Proceeding (“Reply to Opposition to Stay”).26
First, Colding argues that, although he did not allege that he directed his attorney to file a notice
of appeal in his Motion to Vacate, Fabian-Baltazar still directs courts to inquire into whether
Colding was adequately consulted regarding an appeal.27 Further, on August 11, 2019, Colding
requested that the record be expanded to include trial counsel’s email response regarding his
communications with Colding about an appeal.28 In the email, trial counsel states:
22 Dkt. 161 at 3.
23 Dkt. 163 (Opposition to Stay).
24 Id. at 2.
25 Id. at 2–3.
26 Dkt. 164 (Reply to Opposition to Stay).
27 Id. at 1–2.
28 Dkt. 165 (Motion to Expand the Record).
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As was my practice at the time of Mr. Colding’s case, immediately after sentencing
I would have told him to call me if he had any questions or concerns about his
sentence or appeal rights. I checked my notes from his file, and I do not see any
indication that he ever asked me about filing an appeal post sentencing, nor do I
recall any such request on his part.29
The United States did not oppose Colding’s Motion to Expand the Record and stated that it
“believes the representation to be correct.”30 The Court granted Colding’s Motion to Expand the
Record pursuant to Rule 7 on the ground that—although not conclusive under Fabian-Baltazar—
it was relevant to Colding’s § 2255 proceedings.31
On October 18, 2019, the Court sua sponte set an evidentiary hearing for October 25,
2019.32 As discussed below, the purpose of the evidentiary hearing was to determine (1) whether
Colding requested that trial counsel file a notice of appeal following his sentence and, if not, (2)
whether trial counsel adequately consulted Colding on his rights to appeal his case. Colding was
the only witness called to testify.33 Following the close of evidence, the parties were ordered to
submit written closing arguments on the available evidence.34
III. 	LEGAL STANDARD
Under 28 U.S.C. § 2255, a district court may “vacate, set aside, or correct” a sentence of a
federal prisoner that was imposed in violation of the Constitution or a law of the United States.35
29 Dkt. 165-1 at 1 (Trial Counsel’s Email Response).
30 Dkt. 167 (Response in Non-Opposition).
31 Dkt. 168 (Order Granting Motion to Expand the Record).
32 Dkt. 169 (Text Order Setting Hearing).
33 Dkt. 172 (Witness List).
34 Dkt. 170 (Minute Entry for Evidentiary Hearing).
35 28 U.S.C. § 2255(a)
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On a motion for relief under 28 U.S.C. § 2255, “[u]nless the motion and the files and records of
the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a
prompt hearing thereon, determine the issues and make findings of fact and conclusions of law
with respect thereto.”36 If the Court determines that relief is warranted, “the court shall vacate 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.”37
A. 	Ineffective Assistance of Counsel Generally
A claim of ineffective assistance of counsel is rooted in the Sixth Amendment right to
counsel, which is applicable at the plea-bargaining stage of a criminal proceeding and at
sentencing.38 The Sixth Amendment guarantees “the right to counsel of reasonable competence.”39
Generally, a defendant asserting a claim of ineffective assistance of counsel must satisfy the two-
element test defined in Strickland v. Washington.40 Under that test, a defendant must show that
(1) counsel’s 	performance 	was 	deficient, 	i.e., 	“fell 	below 	‘an 	objective 	standard 	of
36 28 U.S.C. § 2255(b).
37 Id.
38 Hill v. Lockhart, 474 U.S. 52, 58 (1985). See also Lafler v. Cooper, 566 U.S. 156, 162 (2012)
(“The precedents also establish that there exists a right to counsel during sentencing in both
noncapital . . . and capital cases . . . ”); Cuyler v. Sullivan, 446 U.S. 335, 344 (1980) (“A guilty
plea is open to attack on the ground that counsel did not provide the defendant with ‘reasonably
competent advice.’”) (quoting McMann v. Richardson, 397 U.S. 759, 770–71 (1970)).
39 Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988) (citing McMann, 397 U.S. at 770–71).
40 466 U.S. 668, 687 (1984).
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reasonableness;’” 41 and (2) prejudice, i.e., that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”42
In assessing the first element, an attorney’s performance is strongly presumed to fall within
“the wide range of reasonable professional competent assistance.”43 The Supreme Court has
cautioned that “it is necessary to ‘judge . . . counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct.’”44 Under the first element, the
petitioner “must prove all facts underlying his claims of ineffective assistance by a preponderance
of the evidence.”45 The second element, prejudice, “focuses on the question whether counsel’s
deficient performance renders the result of . . . the proceeding fundamentally unfair.”46 Thus, in
determining whether there is a reasonable probability that the results of the proceeding would have
been different, courts look to whether that probability is “sufficient to undermine confidence in the
outcome.”47
This standard is applied both in the context of cases that go to trial and in the context of
plea agreements. “Because ‘an intelligent assessment of the relative advantages of pleading guilty
41 Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 688).
42 Strickland, 466 U.S. at 694. See also United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988).
43 Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.”).
44 Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (quoting Strickland, 466 U.S. at 690).
45 Alcala v. Woodford, 334 F.3d 862, 869 (9th Cir. 2003).
46 Lockhart, 506 U.S. at 372.
47 Strickland, 466 U.S. at 694.
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is frequently impossible without the assistance of an attorney’ . . . counsel have a duty to supply
criminal defendants with necessary and accurate information.”48 Where a petitioner alleges
ineffective assistance of counsel when entering into a plea agreement, “[t]he longstanding test for
determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent
choice among the alternative causes of action open to the defendant.’”49 Thus, “[a] defendant who
pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of
the guilty plea by showing that the advice he received from counsel was not within the range of
competence demanded of attorneys in criminal cases.”50 In addition, to satisfy the prejudice
element of Strickland in the context of a guilty plea, a defendant must “show the outcome of the
plea process would have been different with competent advice[.]”51
B. 	Ineffective Assistance of Counsel in Failing to File Post-Conviction Notice of Appeal
Roe v. Flores-Ortega52 established that constitution requires trial counsel in a criminal case
to consult with their client about filing for appeal when there is reason to think either (1) that a
rational defendant in their client’s position would want to appeal, or (2) that the defendant
reasonably demonstrated to counsel that he wished to pursue an appeal.53 Failure to consult the
48 Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986) (internal citation omitted) (quoting Brady v.
United States, 397 U.S. 742, 748 n. 6 (1970)).
49 Signori, 844 F.2d at 638 (quoting Hill, 474 U.S. at 56; North Carolina v. Alford, 400 U.S. 25
(1970)).
50 Id. (citing Tollett v. Henderson, 411 U.S. 258, 267 (1973); McMann, 397 U.S. at 771).
51 Lafler, 566 U.S. at 163.
52 528 U.S. 470 (2000).
53 Id. at 480.
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defendant or file an appeal in such a case is presumptively prejudicial.54 However, until recently,
it has been left unclear whether the same presumption of prejudice applies in cases where the
defendant signed an appeal waiver55 as a part of a plea agreement.
On February 27, 2019, the Supreme Court issued its decision in Garza v. Idaho.56 Garza
concerned a case where a defendant, Gilberto Garza, pleaded guilty under two plea agreements,
each containing a clause stating Garza “waived his right to appeal.”57 After Garza had been
sentenced, Garza told his trial counsel he wished to appeal.58 Garza’s counsel, however, did not
file a notice of appeal.59 Instead, Garza’s counsel told him an appeal would be “problematic
because he waived his right to appeal.”60 After Garza’s time to appeal had elapsed, Garza raised
an ineffective assistance claim.61
The Garza Court noted that the term “appeal waivers” may “misleadingly suggest a
monolithic end to all appellate rights.”62 “In fact, however, no appeal waiver serves as an absolute
54 Id. at 483.
55 “Appeal waivers” are common provisions contained within plea agreements by which a
defendant waives certain rights to file an appeal from the conviction and sentence. Plea agreements
often contain similar collateral attack waivers whereby the defendant agrees not to otherwise
challenge the court’s judgment after its entry.
56 139 S. Ct. 738 (2019).
57 Id. at 742.
58 Id. at 743.
59 Id.
60 Id.
61 Id.
62 Id. at 744.
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bar to all appellate claims.”63 Certain claims may fall outside of the scope of an appeal waiver or
the government may waive the waiver.64 Given the possibility that a defendant may end up raising
claims beyond an appeal waiver’s scope, “simply filing a notice of appeal does not necessarily
breach a plea agreement.”65
The Garza Court also clarified what it means to file a notice of appeal.66 Rather than
proceeding with an appeal on the merits, filing a notice of appeal is merely a “ministerial task.”67
For example, “a notice of appeal need only identify who is appealing; what ‘judgment, order, or
part thereof’ is being appealed; and ‘the court to which the appeal is taken.’”68 At this stage, a
defendant’s particular claims on appeal are often “ill defined or unknown” and choices regarding
which arguments to raise on appeal are left to appellate counsel.69 Although defendants subject to
an appeal waiver “ha[ve] fewer possible claims than some other appellants,” they do retain the
right to file a notice of appeal.70 Therefore, trial counsel’s failure to file a notice of appeal when
requested by their client constitutes ineffective assistance of counsel, even where an appeal waiver
is present.71
63 Id.
64 Id.
65 Id. at 746.
66 Id. at 745–746.
67 Id. at 746 (quoting Flores-Ortega, 528 U.S. at 477).
68 Id. at 745 (quoting Fed. R. App. P. 3(c)(1)).
69 Id.
70 Id. at 748.
71 Id. at 749–50.
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Following Garza, the Ninth Circuit published its per curiam decision in Fabian-Baltazar.72
The case arose out of a § 2255 motion to vacate filed by Abel Heriberto Fabian-Baltazar.73
Pursuant to a plea agreement with the United States, Fabian-Baltazar pleaded guilty to possession
of 50 grams or more of methamphetamine with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A).74 Fabian-Baltazar, through his plea agreement, also waived his rights
to appeal or collaterally attack his sentence.75 Nevertheless, Fabian-Baltazar filed the § 2255
motion claiming that his trial counsel rendered ineffective assistance for failing to file a notice of
appeal.76
The district court denied Fabian-Baltazar’s motion on the grounds that the appeal and
collateral attack waivers in his plea agreement barred his claim.77 The Ninth Circuit affirmed the
district court’s denial of the motion in 2017, noting that Fabian-Baltazar’s motion did not challenge
the voluntariness of the waiver and, therefore, the waiver was enforceable.78 On May 21, 2018,
Fabian-Baltazar then petitioned the Supreme Court for certiorari.79 Prior to ruling on his petition,
72 931 F.3d 1216 (9th Cir. 2019).
73 Id. at 1216–1217.
74 Id.at 1216.
75 Id.
76 Id. at 1217.
77 Fabian-Baltazar v. United States, No. 1:13-CR-00032-AWI, 2015 WL 1497537, at *1 (E.D.
Cal. Mar. 31, 2015), aff’d, 707 F. App’x 477 (9th Cir. 2017), cert. granted, judgment vacated, 139
S. Ct. 1289, 203 L. Ed. 2d 412 (2019), and vacated and remanded, 931 F.3d 1216 (9th Cir. 2019)
78 Fabian-Baltazar v. United States, 707 F. App’x 477 (9th Cir. 2017), cert. granted, judgment
vacated, 139 S. Ct. 1289 (2019), and vacated and remanded, 931 F.3d 1216 (9th Cir. 2019).
79 Fabian-Baltazar v. United States, 2018 WL 7506711 (petition for certiorari).
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the Supreme Court decided Garza. In light of its decision in Garza, the Supreme Court denied
Fabian-Baltazar’s motion and remanded the case to the Ninth Circuit for further consideration.80
Because Fabian-Baltazar’s § 2255 motion contended that he expressly instructed his
attorney to file a notice of appeal, in light of Garza, the Ninth Circuit ordered that the case be
remanded to the district court to (1) determine whether such an instruction was given, and if not,
(2) determine whether counsel failed to consult, and if so, (3) determine whether that failure
constituted deficient performance.81 If the district court found that Fabian-Baltazar’s trial counsel
was ineffective, the court could remedy the ineffective assistance by vacating and reentering the
judgment to allow an appeal to proceed.82 Thus, while Garza provides the grounds for asserting
an ineffective assistance claim in light of an appeal waiver, Fabian-Baltazar describes the
procedural steps courts should follow in assessing such a claim.
IV. 	ANALYSIS
Colding 	raises 	two 	grounds 	for 	relief: 	(1) 	trial 	counsel’s 	performance 	was
unconstitutionally deficient for not correcting a statement by the Court at his change of plea
hearing; 83 and (2) trial counsel rendered ineffective assistance of counsel for not filing a notice of
appeal despite the appeal waiver in Colding’s Plea Agreement. 84 The Court addresses each claim
in turn.
80 Fabian-Baltazar v. United States, 139 S. Ct. 1289 (2019).
81 Fabian-Baltazar, 931 F.3d at 1218.
82 Id. (quoting United States v. Sandoval-Lopez, 409 F.3d 1193, 1198 (9th Cir. 2005)).
83 Dkt. 147 at 6–11 (Memorandum in Support).
84 Id. at 11–12.
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A. 	Whether Trial Counsel Rendered Ineffective Assistance for Failing to Correct Statements
by the Court.
Colding alleges that during his change of plea hearing, the Court inaccurately stated that
he had waived his right to appeal and collaterally attack his conviction and sentence pursuant to
the Plea Agreement.85 Specifically, Colding argues that the appeal waiver contained in the Plea
Agreement allowed him to appeal or otherwise attack his sentence based on ineffective assistance
of counsel or voluntariness of his plea and the Court’s statement failed to take these two exceptions
into account.86 Colding further argues that trial counsel should have objected to or otherwise
corrected the Court’s statement.87 However, Colding’s claim fails to consider the context in which
the statement was made. The relevant portion of the Court’s colloquy with Colding reads as
follows:
THE COURT: All right. Let’s see. Okay. Getting back to page two, bottom of that
first paragraph A, so in addition to you’re agreeing to plead guilty to Count 1, you
are also agreeing to waive any right to appeal your conviction and sentencing
imposed under your agreement, as well as any right to collaterally attack your
conviction and sentence, except upon the grounds of ineffective assistance of
counsel or whether or not your plea was voluntary. Do you understand that?
COLDING: Yes.
THE COURT: What that means—well, it’s important for you to understand that
you're giving up very valuable rights by waiving your right to appeal and
collaterally attack your conviction and sentence. Do you understand that?
COLDING: Yes.88
85 Id. at 9–11.
86 Id.
87 Id. at 11.
88 Dkt. 143 at 19 (Transcript of Change of Plea Hearing).
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Here, the Court first advised Colding as to the contents of the appeal waiver in his Plea
Agreement.89 The Court informed Colding that he was waiving his right to appeal or collaterally
attack his sentence subject to two exceptions: ineffective assistance and voluntariness of the plea.90
Colding explicitly stated that he understood the scope of his appeal waiver.91 Colding concedes
that the Court’s first statement correctly stated the contents of the agreement.92
Immediately following this comprehensive description of the appeal waiver provisions, the
Court then went on to make sure that Colding appreciated the seriousness of waiving certain rights
to challenge his conviction and sentence.93 As part of the subsequent advisement the Court did not
repeat the nuances the waiver—i.e. the exceptions for ineffective assistance claims or challenges
to the voluntariness of the plea.94 Taken alone, the second advisement given by the Court could be
construed as an overstatement of the appeal waiver’s scope. However, when read alongside the
more exhaustive explanation of the appeal waiver, it is clear that Colding was correctly informed
of the waiver’s scope and understood it. Thus, the Court’s statements, read in context, do not
amount to misstatements and Colding’s trial counsel was right to refrain from objecting to the
Court’s correct characterizations of the agreement. Therefore, trial counsel’s performance did not
“f[a]ll below ‘an objective standard of reasonableness,’” nor did Colding suffer any prejudice.95
89 Id.
90 Id.
91 Id.
92 Dkt. 147 at 9.
93 Dkt. 143 at 19.
94 Id.
95 See Silva, 279 F.3d at 836 (quoting Strickland, 466 U.S. at 688).
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Accordingly, Colding has failed to show that his Sixth Amendment right to counsel was
violated by trial counsel’s choice not to object to the Court’s statements during his change of plea
hearing.
B. 	Whether Trial Counsel Failed to Adequately Consult Colding on Filing an Appeal
Waiver
Colding’s trial counsel did not file a notice of appeal following Colding’s conviction and
sentence. In his Motion to Vacate, Colding asserts that his trial counsel failed to adequately consult
him on whether or not he wished to file an appeal waiver.96 This, Colding argues, amounts to
ineffective assistance of counsel in violation of the Sixth Amendment.97 However, as the Ninth
Circuit prescribed in Fabian-Baltazar, where a notice of appeal was not filed, the Court must
determine (1) whether Colding instructed trial counsel to file a notice of appeal, and if not,
(2) whether trial counsel failed to consult, and if so, (3) whether that failure constituted deficient
performance.98
Here, the Parties have provided the Court has only two pieces of evidence from which to
make its findings: Colding’s sworn testimony during the evidentiary hearing99 and the unsworn
email from Colding’s trial counsel.100 Initially, Colding testified that trial counsel “never consulted
with [him] during the plea process about the appellate waiver.”101 However, upon further
96 Dkt. 147 at 11–13.
97 Id.
98 Fabian-Baltazar, 931 F.3d at 1218.
99 Dkt. 174 (Transcript of Evidentiary Hearing).
100 Dkt. 165-1.
101 Dkt. 174 at 13.
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questioning Colding stated that he could not remember whether or not trial counsel had consulted
with him immediately after sentencing.102 Specifically, Colding testified as follows:
THE COURT: Did he say anything to you? So what I’m interested in is whether
there was any conversation at all either by you or by him, right, you know, after the
sentencing.
THE WITNESS: I can’t remember that.
THE COURT: Can’t remember any?
THE DEFENDANT: I don’t remember him saying anything. No, I didn’t say
nothing.
THE COURT: You don’t remember if you said anything and you can’t remember
if he said anything?
THE WITNESS: I know I didn’t say anything.
THE COURT: You know you didn’t say anything to him?
THE WITNESS: I didn’t say anything. I was so mad, my feelings about it, that I
couldn’t say nothing.
THE COURT: I understand. Did he say anything to you?
THE WITNESS: That’s just the part I don't remember as well. I don’t—I don’t
remember. I probably wasn’t listening for him or he could have said something to
me, but it could have been “bye” or something. I don’t remember.
THE COURT: You just don’t remember if he said anything?
THE WITNESS: Yeah.103
During habeas proceedings, the petitioner has the burden of proving the facts underlying
their ineffective assistance claim by a preponderance of evidence.104 “Conclusory allegations
102 Id. at 20–21.
103 Id.
104 Alcala, 334 F.3d at 869.
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which are not supported by a statement of specific facts do not warrant habeas relief.”105 Under
the Fabian-Baltazar inquiry, Colding must prove that (1) he requested trial counsel to file a notice
of appeal, and trial counsel failed to do so; or, (2) that trial counsel failed to consult him about
filing a notice of appeal; and (3) that trial counsel’s failure to consult constituted constitutionally
deficient performance. Here, it is undisputed that Colding did not request his trial counsel file a
notice of appeal. Therefore, the Court cannot say that trial counsel’s failure to file a notice of
appeal was per se ineffective assistance of counsel.
Furthermore, Colding—the only witness who testified—could not remember whether or
not his trial counsel spoke to him, let alone consulted him about filing a notice of appeal.106
Colding’s testimony, therefore, does not prove that trial counsel did not consult him after
sentencing, it only proves that if such consultation occurred Colding cannot remember it. Colding
heavily relies on the email from trial counsel, which states that according to trial counsel’s practice,
“immediately after sentencing [trial counsel] would have told [Colding] to call [trial counsel] if he
had any questions or concerns about his sentence or appeal rights.”107 Colding argues that this
proves that trial counsel improperly placed the onus on Colding to seek consultation and, as a
result, no meaningful consultation occurred.108
Despite Colding’s interpretation, the email does not describe the conversation that actually
took place between Colding and his attorney. The email, which was purportedly authored one year
105 Beard v. Clarke, 18 F. App’x 530, 531 (9th Cir. 2001) (quoting James v. Borg, 24 F.3d 20, 26
(9th Cir.1994)).
106 Dkt. 174 at 20–21.
107 Dkt. 165-1 at 1.
108 Dkt. 173 at 2–3.
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after sentencing, states that it was trial counsel’s practice to inform his clients that they could call
him with questions about their sentence and appeal rights.109 Contrary to Colding’s assertions, the
email does not belie the possibility that trial counsel made additional remarks or consultations
immediately after sentencing. Therefore, Colding’s testimony and trial counsel’s email does not
tend to show—let alone prove by a preponderance—that Colding’s trial counsel failed to consult
or that such a failure constituted constitutionally deficient performance.110
Accordingly, Colding has failed to show that he is entitled to relief on the grounds
discussed in Garza and Fabian-Baltazar.
C. Whether the Court Should Assume the Truth of Colding’s Claim or Otherwise Stay
Ruling on His Motion to Vacate
Turning to Colding’s Motion to Stay, Colding requested that the Court either (1) assume
without deciding that Colding’s claim regarding trial counsel’s failure to move forward on an
appeal is true and vacate and reenter the conviction so that an appeal may proceed or (2) stay ruling
on the Motion to Vacate and allow Colding to gather and put on evidence as to whether he directed
trial counsel to file a notice of appeal and whether trial counsel adequately consulted Colding about
a potential appeal. However, the Court in disposing of his Motion to Vacate has already given
Colding ample time to gather and put on evidence in support of his claims. Yet, Colding did not
provide sufficient evidence to bear his burden of proof. Therefore, Colding’s request that the Court
assume the truth of his claims and vacate and reenter its judgment is DENIED and his request for
a stay is DENIED.
109 Dkt. 165-1 at 1.
110 See Silva, 279 F.3d at 836 (quoting Strickland, 466 U.S. at 688).
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V. 	CONCLUSION
For the foregoing reasons, Colding’s Motion to Vacate at docket 146 is DENIED and
Colding’s Motion to Stay at docket 161 is DENIED.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 17th day of December, 2019
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
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