1:20-cr-00025•USA v. Purnell
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION ALDEN G. PURNELL, # 17977-003, * * Petitioner, * * CRIMINAL NO. 20-00025-TFM-B vs. * CIVIL ACTION NO. 21-00489-TFM-B * UNITED STATES OF AMERICA, * * Respondent. * REPORT AND RECOMMENDATION Pending before the Court is Petitioner Alden G. Purnell’s motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (Doc. 61). This matter was referred to the undersigned Magistrate Judge for consideration and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), S.D. Ala. GenLR 72(a)(2)(R), and Rule 8(b) of the Rules Governing Section 2255 Proceedings.1 On April 6, 2023, the Court held an evidentiary hearing on Petitioner Purnell’s claim that his counsel rendered ineffective assistance by failing to file a direct appeal as requested. (Docs. 71, 75). Upon consideration, the undersigned hereby recommends that Petitioner Purnell’s § 2255 motion (Doc. 61) be DENIED, that this action be DISMISSED with prejudice, and that judgment be entered 1 United States District Judge Terry F. Moorer presided over the proceedings in this action. The undersigned has reviewed Petitioner Purnell’s § 2255 motion and all other relevant documents in the Court’s file and has fully familiarized herself with the proceedings before Judge Moorer. Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 1 of 51 PageID# <pageID>
2 in favor of the Respondent, the United States of America, and against Petitioner Purnell. The undersigned further recommends that a certificate of appealability be GRANTED, but only on the issue of whether Purnell’s counsel was ineffective for failing to file a notice of appeal after allegedly being requested to do so. I. BACKGROUND Petitioner Alden G. Purnell (“Purnell”) was indicted in January 2020 and charged with two counts of knowingly possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). (Doc. 1). The indictment alleged that on or about May 12, 2019, and on or about August 1, 2019, Purnell, knowing he had previously been convicted of a crime punishable by imprisonment for a term exceeding one (1) year, to-wit: Possession of a dangerous weapon (hand gun) while in possession of a controlled substance, Cocaine (crack) on November 7, 2001, in the Criminal District Court for the Parish of Orleans, case number 420-122, did knowingly possess, in and affecting commerce, a firearm, namely, a Bersa, model 380 deluxe, .380 caliber pistol, serial number A17642. (Id. at 1-2). Because both counts of the indictment were identical except for the dates on which Purnell was alleged to have possessed the same firearm,2 Purnell’s appointed federal public defender, Peter Madden (“Madden”), moved for dismissal of one of the counts on 2 Count one alleged that Purnell possessed “a Bersa, model 380 deluxe, .380 caliber pistol, serial number A17642” on or about May 12, 2019, while count two alleged that Purnell possessed the same firearm on or about August 1, 2019. (Doc. 1 at 1-2). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 2 of 51 PageID# <pageID>
3 double jeopardy grounds. (Doc. 18). The Government filed no opposition to the motion, and the Court granted the motion and dismissed count one of the indictment on June 2, 2020. (Doc. 34). On April 14, 2020, Madden filed a notice stating that Purnell intended “to enter a blind plea of guilty” to count two of the indictment. (Doc. 27). On June 2, 2020, Purnell pled guilty to count two of the indictment without a plea agreement. (Docs. 35, 38). Before Purnell’s sentencing, a probation officer prepared a presentence investigation report (“PSR”), which provided additional details regarding Purnell’s offense conduct. (Docs. 37, 43). According to the PSR, “multiple witnesses” reported that on May 12, 2019, “after engaging in a verbal and physical altercation with Willie Jenkins and Willie West,” Purnell “retrieved a pistol from his car and began shooting at Jenkins and West” outside a restaurant in Jackson, Alabama. (Doc. 37 at 3; Doc. 43 at 3). The PSR stated that Jackson police officers “observed two bullet holes in the front window of the restaurant” and “also recovered several spent .380-caliber shell casings from the front of the restaurant and a bullet fragment from a nearby vehicle that was struck by gunfire.” (Doc. 37 at 3; Doc. 43 at 3). The PSR stated that “officers subsequently viewed video surveillance footage from the restaurant that confirmed witness accounts.” (Doc. 37 at 3; Doc. 43 at 3). The PSR stated that Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 3 of 51 PageID# <pageID>
4 Purnell called a Jackson police detective two days later and admitted to shooting a firearm outside the restaurant “but stated that he did so in response to being ‘jumped.’” (Doc. 37 at 3; Doc. 43 at 3). The PSR further stated that Purnell was taken into custody on August 1, 2019, as he attempted to enter a hospital in Mobile, Alabama. (Doc. 37 at 3-4; Doc. 43 at 3-4). The PSR reported that after “Purnell told investigators that he left his car running and asked that they turn off the vehicle,” a firearm was found lying in plain view on the vehicle’s floorboard. (Doc. 37 at 4; Doc. 43 at 4). “The firearm was identified as a Bersa model 380 Deluxe, .380-caliber pistol (serial #: A17642),” and Purnell advised that it was the same pistol he had fired outside the restaurant on May 12, 2019. (Doc. 37 at 4; Doc. 43 at 4). Purnell again admitted to his involvement in the altercation outside the restaurant, but he claimed he had “retrieved his firearm from his vehicle and fired it in self-defense.” (Doc. 37 at 4; Doc. 43 at 4). “Purnell stated that he was in fear for his life because he knew [Willie] Jenkins had previously shot an individual.” (Doc. 37 at 4; Doc. 43 at 4). The PSR also reported that an ATF special agent had requested and received a certified copy of Purnell’s “2001 felony conviction for Possession of a Firearm While in Possession of a Controlled Substance in Orleans Parish Criminal District Court, New Orleans, Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 4 of 51 PageID# <pageID>
5 Louisiana.” (Doc. 37 at 4; Doc. 43 at 4). The PSR noted that Purnell was sentenced to “9 years imprisonment” for that offense on November 7, 2001, and that he was “[r]eleased from custody” on April 21, 2003. (Doc. 37 at 6; Doc. 43 at 6). The PSR provided the following details about the offense: “The defendant was represented by counsel. On February 12, 2001, Purnell did, while in the Parish of Orleans, possess a handgun while in possession of a controlled and dangerous substance, to-wit: crack cocaine.” (Doc. 37 at 6; Doc. 43 at 6). The PSR calculated Purnell’s base offense level of 27 by applying a cross-reference to U.S.S.G. § 2A2.1(a)(2), pursuant to U.S.S.G. § 2K2.1(c)(1)(A), “because [Purnell] used the firearm in connection with the commission or attempted commission of another offense (Attempted Murder).” (Doc. 37 at 5; Doc. 43 at 5). Purnell received credit for acceptance of responsibility, reducing his total offense level to 24. (Doc. 37 at 5; Doc. 43 at 5). When coupled with Purnell’s criminal history category of I, that offense level yielded a guideline imprisonment range of 51 to 63 months. (Doc. 43 at 11). In response to the draft PSR, Madden filed Purnell’s position with respect to sentencing factors, wherein Purnell objected to the application of the attempted murder cross-reference “on both factual and legal grounds.” (Doc. 39). Purnell objected to the factual allegations in the PSR “to the extent that they suggest Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 5 of 51 PageID# <pageID>
6 that he was the aggressor in a ‘verbal and physical altercation’ with Willie Jenkins and Willie West.” (Id. at 1). Purnell maintained that “West and Jenkins along with others were the aggressors in the confrontation and threatened [Purnell] as he was able to escape after being beaten to the ground in the street.” (Id.). Purnell stated: The video surveillance footage referenced in paragraph 5 of the [PSR] only supports the fact that [Purnell] was beaten in the street by more than two individuals and is later seen with a handgun. It is of extremely poor quality and is missing significant segments which would provide a true and accurate recording of the events. It only shows part of the beating, does not contain an audio track of threats made against [Purnell] and does not show [Purnell] shooting the firearm. (Id. at 1-2). Purnell asserted that he acted in self-defense and had no intent to murder the men who attacked and threatened him, and he noted that no person sustained any firearm injury as a result of his actions. (Id. at 2). Thus, Purnell argued that to “describe [his] actions as ‘attempted murder’ is contrary to the facts and the law and cannot support a cross-reference to the attempted murder guideline.” (Id.). The probation officer responded to Purnell’s objections to the attempted murder cross-reference as follows: Pursuant to USSG § 2K2.1 Commentary, Application Note 14(E), the cross reference at USSG § 2K2.1(c)(1)(A) is to be applied when the defendant used or possessed any firearm cited in the offense of conviction in connection with the commission or attempted commission of another offense. On August 2, 2019, Purnell was interviewed by Jackson Police Investigators and admitted that the Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 6 of 51 PageID# <pageID>
7 firearm found in his possession on August 1, 2019, was the same firearm he used in the shooting that occurred on May 12, 2019. Purnell was subsequently indicted on two counts of attempted murder in Clarke County Circuit Court related to the shooting incident. Moreover, the defendant’s claim that he acted in self-defense is contrary to multiple witness accounts which reported that Purnell retrieved a pistol from his car after the physical altercation with Willie Jenkins and Willie West. Therefore, Purnell was not in imminent danger, and could have left the area in his vehicle rather than returning with a firearm and intentionally shooting at Jenkins and West. Consequently, the report remains unchanged. (Doc. 44 at 1; see also Doc. 43). At Purnell’s sentencing hearing on November 12, 2020, Madden informed the Court that Purnell was withdrawing his objection to the attempted murder cross-reference. (Doc. 60 at 2). The Court responded: For purposes of the record, I had considered that objection and I think that the objection would have been due to be overruled anyway, inasmuch as even if the situation or facts didn’t fit the murder provisions of 1111, 18 U.S.C. 1111, I think that it would clearly fit as at a minimum an attempted manslaughter under 1113 and that same guideline would apply and so you would get the same result. (Id.). The Court adopted the PSR in its entirety and thus found that Purnell’s guideline imprisonment range was 51 to 63 months. (Id.). After hearing from both Purnell and the Government,3 the Court sentenced Purnell to 63 months in prison, which represented 3 The Government recommended that the Court impose a sentence “within” the guideline imprisonment range, “51 to 63 months, with the full three-year supervised release term to follow.” (Doc. 60 at 3). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 7 of 51 PageID# <pageID>
8 a sentence at the high end of the advisory guideline range. (Id. at 16). After announcing the sentence, the Court stated: I looked at the guidelines and I think the guidelines are adequate. Frankly, Mr. Purnell, when I sat down and thought about the facts and circumstances of the case, I had really seriously thought about imposing a sentence greater than 63 months. In fact, I had thought about imposing the statutory maximum sentence of 10 years, because this incident involved the actual firing of weapons, a serious felony under both state and federal law. And I looked carefully at the facts and circumstances of your case and I feel that this sentence is the sentence that I know I would impose if there were no guidelines. And if the guidelines were lower, I would have departed upwardly to this level because I’m really very surprised that somebody didn’t end up hurt or dead. (Id. at 16-17). The Court also informed Purnell that he had “a right to appeal” and advised him: To the extent that you choose to appeal, you must file a written notice of appeal within 14 days of today’s date or the date upon which I sign the judgment, whichever is latest. If you cannot afford the costs of an appeal, the Court will provide you with a free attorney and transcript so that you may. (Id. at 19-20). Purnell did not appeal his conviction or sentence. On October 22, 2021, Purnell, proceeding without an attorney, filed the instant § 2255 motion and a supporting memorandum.4 (Docs. 61, 61-1). Purnell later filed a supplement to his § 2255 4 Under the mailbox rule, “a pro se prisoner’s motion to vacate is deemed filed the date it is delivered to prison authorities for mailing.” Adams v. United States, 173 F.3d 1339, 1341 (11th Cir. 1999) (per curiam). Absent evidence to the contrary, that date is presumed to be the date the prisoner signed the motion. Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (per curiam). Purnell’s motion states that it was placed in the prison mailing system on October 22, 2021. (See Doc. 61 at 12). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 8 of 51 PageID# <pageID>
9 motion. (Doc. 67). The Government filed a response in opposition to Purnell’s motion (Doc. 66), and Purnell filed a reply. (Doc. 68). On April 6, 2023, the Court held an evidentiary hearing on Purnell’s claim that his counsel was ineffective for failing to comply with his request to file a direct appeal.5 (Docs. 71, 75). Purnell’s § 2255 motion is now ripe for resolution. II. HABEAS STANDARD The limited scope of habeas relief is well established, as this Court has recognized: Collateral relief is an extraordinary remedy which “may not do service for a[ ] [direct] appeal.” United States v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982); see also Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (“Courts have long and consistently affirmed that a collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal.”). A defendant who has waived or exhausted his right to appeal is presumed to stand “fairly and finally convicted.” Frady, 456 U.S. at 164. Unless a claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained extremely limited. United States v. Addonizio, 442 U.S. 178, 185, 99 S. Ct. 2235, 60 L. Ed. 2d 805 (1979). Consequently, “[i]f issues are raised and considered on direct appeal, a defendant is thereafter precluded from urging the same issues in a later collateral attack. . . . A defendant is, of course, entitled to a hearing of his claims, but not to duplicate hearings. The appellate process does not permit reruns.” Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979). 5 Attorney Richard E. Shields was appointed to represent Purnell for purposes of the evidentiary hearing only. (Docs. 69, 70). The Court thanks Mr. Shields for his service in this matter. Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 9 of 51 PageID# <pageID>
10 United States v. Evans, 2008 U.S. Dist. LEXIS 59836, at *8-9, 2008 WL 3200694, at *3 (S.D. Ala. Aug. 6, 2008). III. DISCUSSION A. Ground One: “Ineffective Assistance of Counsel” In ground one of his § 2255 motion, Purnell asserts that his counsel was ineffective in three respects. (See Doc. 61 at 4). First, Purnell claims that Madden was ineffective for allowing “an extremely edited video that did not display the whole factual ordeal to its entirety, into evidence that the court was using to uphold a[] cross reference, without an attempt at filing for it to be dismissed on that grounds.”6 (Id.). Second, Purnell contends that Madden was ineffective for failing to investigate, determine, and argue that because Purnell received an automatic first-time offender pardon in connection with his predicate Louisiana state conviction, he did not belong to the relevant category of persons barred from possessing a firearm under 18 U.S.C. § 922(g)(1). (Id.). Third, Purnell claims that Madden rendered ineffective assistance by failing to comply with his request to file a direct appeal. (Id.). To prevail on a claim of ineffective assistance of counsel, Purnell must demonstrate both that (1) counsel’s performance was 6 Unless otherwise indicated, quoted language from Purnell’s pro se filings is reproduced herein without modification or correction for typographical, grammar, or spelling errors. Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 10 of 51 PageID# <pageID>
11 deficient because it fell below an objective standard of reasonableness, and that (2) counsel’s poor showing prejudiced his defense because there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Purnell bears the burden of proving his ineffective assistance claims, and he must meet his burden on both prongs to succeed. Williams v. Allen, 598 F.3d 778, 789 (11th Cir. 2010). A court “need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.” Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (internal citation omitted). The proper measure of attorney performance is whether counsel’s performance was objectively reasonable under prevailing professional norms considering all the circumstances. Hinton v. Alabama, 571 U.S. 263, 273 (2014) (per curiam). This judicial scrutiny is highly deferential, and courts adhere to a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689- 90. To be objectively unreasonable, the performance must be such that no competent counsel would have taken the action. Hall v. Thomas, 611 F.3d 1259, 1290 (11th Cir. 2010). To establish prejudice, Purnell must show “a reasonable probability that, but for counsel’s unprofessional errors, the Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 11 of 51 PageID# <pageID>
12 result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. To demonstrate prejudice in the context of an ineffective assistance claim arising out of the plea process, Purnell must show a reasonable probability that he would not have pled guilty but for counsel’s errors and must convince the court that such a decision would have been rational under the circumstances. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Padilla v. Kentucky, 559 U.S. 356, 372 (2010). To show prejudice in the sentencing context, Purnell must show a reasonable probability that his counsel’s errors resulted in a longer sentence. Glover v. United States, 531 U.S. 198, 203-04 (2001). 1. Edited and Incomplete Video. Purnell’s first claim is that Madden was ineffective for allowing “an extremely edited video to be held into evidence to uphold a[] (cross reference, an enhancement) without any objecting attempts of any sort.” (Doc. 61-1 at 2). Purnell contends that surveillance video footage of the altercation outside the restaurant on May 12, 2019, did not display “the entire facts of the ordeal” and “was edited to establish [his] definite guilt.” (Id.). Purnell contends that the charges against him had “a good chance at being dismissed” had Madden challenged this “edited or altered evidence.” (Id.). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 12 of 51 PageID# <pageID>
13 To the extent Purnell contends Madden was ineffective for failing to file a motion to dismiss the indictment and/or a motion to suppress based on the allegedly edited video, these claims are waived by his knowing and voluntary guilty plea. A “guilty plea waives all non-jurisdictional defects occurring prior to the time of the plea.” Tiemens v. United States, 724 F.2d 928, 929 (11th Cir. 1984) (per curiam); see also Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) (per curiam) (“A defendant who enters a plea of guilty waives all nonjurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained.”). This includes any pre-plea claim of ineffective assistance of counsel, “unless the deficient performance relates to the voluntariness of the plea itself.” Bullard v. Warden, Jenkins Corr. Ctr., 610 F. App’x 821, 824 (11th Cir. 2015) (per curiam).7 To be knowing and voluntary, “(1) the guilty plea must be free from coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know and understand the consequences of his guilty plea.” United States v. Mosley, 173 7 Federal Appendix cases are unpublished Eleventh Circuit opinions and are not considered binding precedent, but they may be cited as persuasive authority. See 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.”); Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases printed in the Federal Appendix are cited as persuasive authority.”). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 13 of 51 PageID# <pageID>
14 F.3d 1318, 1322 (11th Cir. 1999) (quotations omitted). When accepting a guilty plea, a district court must ensure that these three “core concerns” of Federal Rule of Criminal Procedure 11 have been met. United States v. Lejarde-Rada, 319 F.3d 1288, 1289 (11th Cir. 2003) (per curiam). “[W]hen a defendant makes statements under oath at a plea colloquy, he bears a heavy burden to show his statements were false.” United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988) (per curiam). As the Supreme Court has made clear: [T]he representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible. Blackledge v. Allison, 431 U.S. 63, 73–74 (1977). Here, the record reflects that Purnell voluntarily pled guilty to the offense charged in count two of the indictment with full knowledge of the nature of the charge against him and the potential consequences of his plea. At his change-of-plea hearing, Purnell was placed under oath and questioned by the Court as to the knowing and voluntary nature of his plea. (See Doc. 38). Purnell acknowledged that he had seen the indictment and had an opportunity to discuss the indictment and the case in general with Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 14 of 51 PageID# <pageID>
15 his attorney. (Id. at 3). Purnell stated that he was fully satisfied with his attorney’s representation and advice in this matter. (Id.). Purnell also confirmed that no one had made any promises to him or attempted to force or threaten him to plead guilty, and that he was pleading guilty of his own free will because he was in fact guilty. (Id. at 3-4). Purnell acknowledged that he understood the charge against him and the potential penalties for the offense. (Id. at 4-5). Purnell also confirmed that he had discussed with his attorney how the sentencing guidelines might affect his case, that he understood the Court had the authority to impose a sentence more or less severe than that called for in the guidelines, and that he understood that the sentence imposed might differ from any estimate his attorney or anyone else might have given him. (Id. at 5-8). The Court informed Purnell of the elements of the offense, and Purnell confirmed his understanding of those elements and acknowledged that they were satisfied. (Id. at 9-12). Specifically, Purnell acknowledged that on August 1, 2019, he knowingly possessed the firearm identified in the indictment. (Id. at 11). He further confirmed that when he possessed the firearm on August 1, 2019, he knew that he had previously been convicted of a felony in New Orleans, Louisiana on November 7, 2001. (Id. at 12). As reflected above, the Court addressed Rule 11’s core concerns during the guilty plea colloquy and ensured that Purnell Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 15 of 51 PageID# <pageID>
16 was entering his plea free from coercion and with understanding of the nature of the charge against him and the consequences of his plea. Thus, the Court finds that Purnell’s plea of guilty was both knowing and voluntary.8 Purnell does not argue that the voluntary and knowing nature of his plea was somehow compromised by his counsel’s failure to file a motion to dismiss or a motion to suppress based on the allegedly edited video.9 Therefore, any such claim is waived by his guilty plea. Plus, Purnell cannot show that he was prejudiced by his attorney’s failure to file a motion to suppress or a motion to dismiss the indictment based on the allegedly edited video prior to the entry of his guilty plea. As an initial matter, the Court notes that Purnell offers nothing beyond his own bare and 8 To the extent Purnell challenges the knowing and voluntary nature of his guilty plea based on his counsel’s alleged failure to investigate and determine that his right to possess a firearm had been restored when he received an automatic first-time offender pardon in connection with his predicate Louisiana state conviction, his claim fails for two reasons. First, as explained in a later section of this report and recommendation, Purnell’s rights had not been restored in a manner that would relieve him of criminal liability under 18 U.S.C. § 922(g)(1). Second, Purnell’s suggestion that he did not know that he belonged to the relevant category of persons barred from possessing a firearm is belied by his own representations in open court, which reflect that he was fully aware of his prohibited status at the time he possessed the firearm and made the conscious decision to possess a firearm anyway. 9 Even if Purnell’s claim could be construed as an attack on the voluntariness of his plea, the claim would not succeed because the record clearly demonstrates that Purnell’s guilty plea was voluntarily and intelligently made. Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 16 of 51 PageID# <pageID>
17 conclusory accusations that the video was edited by the Jackson Police Department to prove his guilt. Even if the video was somehow found to be improperly edited, the appropriate remedy would have been suppression of the video rather than dismissal of the indictment. See Turner v. United States, 2012 U.S. Dist. LEXIS 123543, at *43-44, 2012 WL 3848653, at *14 (N.D. Ala. Aug. 30, 2012). And suppression of the video would not have led to dismissal of the charges against Purnell because there was ample evidence apart from the video to support Purnell’s conviction under § 922(g)(1). See id., 2012 U.S. Dist. LEXIS 123543, at *44, 2012 WL 3848653, at *14 (noting that “once a court has granted a pretrial motion to suppress, dismissal of the indictment may follow as a consequence, but only if the evidence suppressed would be necessary to support a conviction”). Indeed, it is notable that Madden did successfully move for dismissal of count one of the indictment, which was based on Purnell’s possession of the firearm on May 12, 2019, the date the video was taken. (See Docs. 1, 18, 34). Purnell pled guilty to count two of the indictment, which was based on his possession of the firearm found in his vehicle on August 1, 2019, and at no point has Purnell disputed that he possessed the firearm on that date. (See Doc. 1 at 2; Doc. 38 at 11-12). Given the foregoing, Purnell has not shown a reasonable probability that he would not have pled guilty to the charge in count two had his counsel filed a motion Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 17 of 51 PageID# <pageID>
18 to suppress or a motion to dismiss based on the allegedly edited video. Thus, in addition to being waived, any claim that counsel was ineffective for failing to move for suppression or dismissal based on the video is meritless. To the extent Purnell contends Madden was ineffective for failing to object to the video being considered in connection with the attempted murder cross-reference at sentencing, his claim rests on at least two incorrect premises. First, contrary to Purnell’s assertion that there were no “objecting attempts of any sort” with respect to the allegedly edited video, Madden specifically argued in Purnell’s sentencing position pleading that the video “is of extremely poor quality and is missing significant segments which would provide a true and accurate recording of the events.” (See Doc. 39 at 2). He noted that the video “only shows part of the beating, does not contain an audio track of threats made against [Purnell,] and does not show [Purnell] shooting the firearm.” (Id.). Although Madden, with Purnell’s assent, withdrew the objection to the attempted murder cross-reference at sentencing, there is no indication that he receded from the arguments made regarding the video. (See Doc. 60). More importantly, regardless of the actions taken or not taken by counsel, the record reflects that the video had no impact on Purnell’s sentence. It was neither discussed nor admitted into evidence by the Court during Purnell’s sentencing hearing, and Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 18 of 51 PageID# <pageID>
19 there is nothing in the record to indicate that the Court viewed or considered the video at all in fashioning Purnell’s sentence.10 (See id.). Also, to the extent Purnell claims the video was incomplete and “did not display the whole factual ordeal to its entirety” (see Doc. 61 at 4), the record reflects that Purnell addressed the Court at length during his sentencing hearing and explained the events that led to him firing the pistol.11 (See Doc. 60 at 5- 10). The Court acknowledged Purnell’s claim that he was acting in self-defense; however, it noted that Purnell had by his own 10 At the evidentiary hearing on the issue of whether Purnell requested him to file a direct appeal, Madden stated the following about the video footage referenced in Purnell’s motion: That wasn’t evidence at the sentencing hearing. The videotape provided to us was recorded on old equipment by -- it was a CCTV at the restaurant where this incident occurred. And it was cameras on the building that were looking out on the street and in the parking lot. And the video quality was bad and there were significant gaps in the recordings. And we had been aware of that, you know, all along. But that wasn’t -- I don’t believe the judge ever saw that. And I had objected to it because -- in preparation for the self-defense claim. But the video, just it wasn’t a factor, and it wasn’t considered by the judge. So there was no basis for an appeal there based on that. (Doc. 75 at 30). 11 When he addressed the Court at sentencing, Purnell specifically asserted that “the video was edited” and suggested that the Jackson Police Department was responsible for the video being edited. (See Doc. 60 at 6). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 19 of 51 PageID# <pageID>
20 admission “made the conscious decision” to possess a pistol despite knowing that he was not permitted to possess a firearm as a convicted felon, and that Purnell had the opportunity to leave the scene of the altercation outside the restaurant but instead went to his car, retrieved the pistol, and started shooting. (See id. at 5-12). Thus, Purnell cannot show that he was prejudiced as a result of his counsel’s alleged failure to object to the consideration of the video during sentencing. For the foregoing reasons, Purnell is entitled to no relief on his first ineffective assistance of counsel claim. 2. First-Time Offender Pardon. Next, Purnell claims that his counsel was ineffective for failing to investigate, determine, and argue that he was not prohibited from possessing a firearm under 18 U.S.C. § 922(g)(1) because his rights had been fully restored when he received an automatic first-time offender pardon upon the completion of his sentence for his predicate Louisiana felony conviction. (Doc. 61 at 4; Doc. 61-1 at 3-5). Purnell asserts that Madden was dismissive when he brought this issue to his attention. (Doc. 61- 1 at 4-5). Section 922(g)(1) prohibits a person who has been convicted of “a crime punishable by imprisonment for a term exceeding one year” from possessing a firearm. 18 U.S.C. § 922(g)(1). “However, 18 U.S.C. § 921(a)(20) expressly states that a conviction for a Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 20 of 51 PageID# <pageID>
21 predicate offense will not be considered if a state exercises its right to restore the civil rights of a person for that offense.” United States v. Fowler, 198 F.3d 808, 809 (11th Cir. 1999). Section 921(a)(20) provides, in relevant part: What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. 18 U.S.C. § 921(a)(20). Therefore, a previous conviction is not a predicate § 922(g)(1) substantive offense if the offender has been pardoned or had his civil rights restored, “unless such pardon . . . or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” See Fowler, 198 F.3d at 809; 18 U.S.C. § 921(a)(20). This is known in federal jurisprudence as the “unless clause” of § 921(a)(20). See, e.g., United States v. Tait, 202 F.3d 1320, 1322 (11th Cir. 2000). The United States Supreme Court discussed the unless clause at length in Caron v. United States, 524 U.S. 308 (1998). The issue in Caron was whether a state’s prohibition against felons possessing some weapons, but not all, triggered the unless clause. 524 U.S. at 313. The Supreme Court held that even the most limited Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 21 of 51 PageID# <pageID>
22 restriction under state law of a past offender’s right to bear firearms (or any subset of firearms) is sufficient to trigger the application of the unless clause and activate the federal ban under § 922(g)(1) against possessing any firearms at all, even if the past offender’s present offense conduct would not be within the ambit of the state law restriction. Id. at 315-17. “The [Supreme] Court essentially held the unless clause is ‘all-or-nothing;’ either state law triggers the clause by banning felons from possessing some firearms, or state law does not trigger the clause because the state does not ban felons from possessing any firearms.” Tait, 202 F.3d at 1322 (citing Caron, 524 U.S. at 314); see also United States v. Braun, 453 F. Supp. 3d 883, 887 (M.D. La. 2020) (“[U]nder the ‘all or nothing’ reasoning of Caron, a civil rights restoration that limits . . . the possession of even one type of firearm [is] deemed one that trigger[s] the ‘unless clause.’”). “In Louisiana, a defendant’s rights are restored automatically by operation of state law upon completion of a first- time offender’s sentence.” Id.; see La. Const. Art. IV, § 5(E)(1); La. Rev. Stat. § 15:572(B)(1); La. Const. Art. I, § 20. “To accomplish this, the [Louisiana] Division of Probation and Parole must issue a certificate to a first-time offender ‘recognizing and proclaiming that [he] is fully pardoned for the offense, and that he has all rights of citizenship and franchise.’” Braun, 453 F. Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 22 of 51 PageID# <pageID>
23 Supp. 3d at 887 (quoting La. Rev. Stat. § 15:572(D)). “[T]his document is designed to inform the person what has taken place by operation of law, but it is not itself a pardon.” United States v. Harris, 2018 U.S. Dist. LEXIS 208485, at *13, 2018 WL 6498715, at *5 (E.D. Tex. Dec. 11, 2018) (citing State v. West, 754 So. 2d 408, 410 (La. App. 2 Cir. 3/1/00)).12 As noted supra, the predicate offense for Purnell’s § 922(g)(1) charge in this case was a 2001 Louisiana state felony conviction for possessing a firearm while in possession of a controlled and dangerous substance. (See Doc. 1 at 1-2; Doc. 43 at 4, 6). The PSR reflects (and Purnell acknowledges) that Purnell was sentenced to nine years’ imprisonment for that offense on November 7, 2001, although he was released from custody on April 21, 2003. (See Doc. 43 at 6; Doc. 67 at 1). According to the Louisiana Division of Probation and Parole, Purnell’s period of supervision for the offense terminated effective May 13, 2012. (Doc. 67 at 2).13 12 For the sake of conciseness, the automatic restoration of a defendant’s rights by operation of Louisiana law upon completion of a first-time offender’s sentence is referred to herein as a “first-time offender pardon.” 13 Purnell has not provided documentary verification of his first- time offender pardon pursuant to La. Rev. Stat. § 15:572(D). However, he has submitted a letter from the Louisiana Division of Probation and Parole, dated February 7, 2022, which reflects that the period of supervision for his 2001 Louisiana felony conviction was “terminated effective MAY 13, 2012.” (Doc. 67 at 2). The Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 23 of 51 PageID# <pageID>
24 Louisiana makes it “unlawful for persons convicted of certain enumerated felonies to possess firearms for a period of ten years following completion of their sentences.” Braun, 453 F. Supp. 3d at 887-88; see La. Rev. Stat. § 14:95.1(A), (C). “It is well settled that a first-time offender pardon does ‘not include the right to possess firearms in contravention’ of this state law.” Harris, 2018 U.S. Dist. LEXIS 208485, at *13, 2018 WL 6498715, at *4 (quoting West, 754 So. 2d at 410). Purnell’s 2001 conviction for possessing a firearm while in possession of a controlled and dangerous substance was an enumerated felony under the Louisiana ten-year cleansing period statute. See La. Rev. Stat. § 14:95.1(A). Therefore, Purnell was subject to a ten-year prohibition on firearm possession under Louisiana law following the completion of his sentence.14 The record indicates that Purnell remained subject to this prohibition on firearm possession as of August 1, 2019, the date of the charged offense in this case. See id. at § 14:95.1(C). Consequently, Purnell has not established letter further states: “This satisfaction of sentence does not automatically restore the right to possess firearms. The right to receive, possess or transport a firearm may not be restored unless all legal provisions (refer to La. R.S. 14:95.1) are met. Any questions regarding these legal provisions should be directed to your attorney.” (Id.). 14 The ten-year cleansing period runs “from the date of completion of sentence, probation, parole, suspension of sentence, or discharge from a mental institution by a court of competent jurisdiction.” La. Rev. Stat. § 14:95.1(C). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 24 of 51 PageID# <pageID>
25 that it was lawful for him to possess a firearm based on § 921(a)(20)’s restoration-of-rights exception. See United States v. Dupaquier, 74 F.3d 615, 618 (5th Cir. 1996) (indicating that because La. Rev. Stat. § 14:95.1 makes it unlawful for a convicted felon to possess a firearm until ten years after the date of completion of his sentence, possession of a firearm did not become lawful for a defendant until after this ten-year cleansing period had expired). In addition to the ten-year cleansing period referenced above, “Louisiana law also prohibits persons with un-expunged felonies on their criminal records from obtaining a concealed handgun permit, absent a governor’s pardon.” Braun, 453 F. Supp. 3d at 888; see La. Rev. Stat. § 40:1379.3. The law states, in relevant part, that “[a] conviction for a felony offense which has been expunged . . . shall not be considered a conviction for the purposes of this Paragraph if ten years have elapsed since the completion of the resident’s probation, parole, or suspended sentence.” Id. “Thus, a person previously convicted of a Louisiana felony remains ineligible to obtain a concealed handgun permit unless the person either (a) receives a governor’s pardon or (b) ten years have elapsed and the conviction was expunged.” Braun, 453 F. Supp. 3d at 888 (emphasis in original).15 15 Purnell does not claim to have received a governor’s pardon, he Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 25 of 51 PageID# <pageID>
26 Federal district courts that have considered the issue have repeatedly determined that even when a defendant is not subject to the ten-year prohibition on firearm possession under La. Rev. Stat. § 14:95.1, Louisiana’s concealed handgun permit law is sufficient to trigger the unless clause of § 921(a)(20). See Harris, 2018 U.S. Dist. LEXIS 208485, at *29, 2018 WL 6498715, at *9 (“The 1997 [Louisiana] conviction ‘counts’ for the purpose of excluding [defendant] from eligibility for a concealed handgun permit, and under Caron’s all-or-nothing interpretation of the § 921(a)(20) ‘unless clause,’ the conviction therefore constitutes an appropriate predicate offense for § 922(g) charges under federal law.”); United States v. Sam, 2016 U.S. Dist. LEXIS 51968, at *16- 17, 2016 WL 1600229, at *5 (W.D. La. Mar. 23, 2016) (“Louisiana has deemed Sam too dangerous to obtain a concealed carry permit and this finding, under Caron, is sufficient to trigger the federal ban contained in the ‘possess’ and ‘transport’ elements of the ‘unless clause’ of § 921(a)(20).”), report and recommendation adopted, 2016 U.S. Dist. LEXIS 52174, 2016 WL 1573002 (W.D. La. Apr. 18, 2016); United States v. Viola, 2016 U.S. Dist. LEXIS 69153, at *9, 2016 WL 3040695, at *3 (W.D. La. May 24, 2016) (“Louisiana law . . . prohibits convicted felons, like Viola, from does not allege that his conviction was expunged, and ten years had not elapsed since the completion of his state sentence at the time of the charged offense in this case. Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 26 of 51 PageID# <pageID>
27 obtaining a concealed carry permit. This restriction prohibits Viola from both possessing and transporting a firearm in the same manner as those who do not have a felony conviction. . . . Caron, is sufficient to trigger the federal ban contained in the ‘possess’ and ‘transport’ elements of the ‘unless clause’ of § 921(a)(20). Therefore, Viola’s prior state court felony conviction is a proper predicate offense [under] § 922(g)(1).”); Braun, 453 F. Supp. 3d at 897; see also United States v. Viola, 768 F. App’x 238, 245 n.6 (5th Cir. 2019) (Elrod, J., concurring) (“Louisiana law explicitly provides that recipients of the first offender pardon are not eligible to receive a concealed carry permit. . . . [U]nder Caron’s interpretation of Section 921(a)(20), that limitation triggers the ‘unless clause.’ As such, the district court could not have dismissed the indictment for lack of a predicate offense while still being faithful to the Supreme Court’s precedent in Caron.”). Purnell cites no case authority to the contrary. Thus, the Court finds that even if Purnell had not been subject to the ten-year prohibition on firearm possession under La. Rev. Stat. § 14:95.1, the restrictions on his ability to obtain a concealed handgun permit were sufficient to trigger the unless clause of § 921(a)(20), making his 2001 Louisiana conviction an appropriate predicate offense for his § 922(g)(1) charge. Because Purnell belonged to the relevant category of persons barred from possessing a firearm under § 922(g)(1) despite his Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 27 of 51 PageID# <pageID>
28 Louisiana first-time offender pardon, he cannot show that his counsel performed deficiently by failing to raise the issue of his first-time offender pardon before the district court, nor can he show prejudice based on his counsel’s alleged omissions. Consequently, Purnell is entitled to no relief on this claim.16 3. Failure to File a Notice of Appeal. Purnell further claims that Madden’s performance was constitutionally deficient because he failed to file a notice of appeal after Purnell requested that he do so after sentencing. (Doc. 61 at 4; Doc. 61-1 at 4). In his § 2255 motion, Purnell alleges that “after [he] was sentenced in court,” he “instructed [Madden] to file an appeal” raising the same substantive issues raised in the instant § 2255 motion. (Doc. 61-1 at 4). According to Purnell’s motion, when Purnell called Madden six months after sentencing to inquire about his “appeal status,” Madden told him that he “didn’t file anything because it was nothing to file.” (Id. at 4-5). It is well-settled that “an attorney who fails to file an appeal on behalf of a client who specifically requests it acts in a professionally unreasonable manner per se.” Gomez–Diaz v. United States, 433 F.3d 788, 791-92 (11th Cir. 2005); see Roe v. Flores– 16 Because the underlying substantive claim is without merit, the Court need not address the Government’s remaining arguments as to why Purnell’s second ineffective assistance of counsel claim fails. (See Doc. 66 at 16-21). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 28 of 51 PageID# <pageID>
29 Ortega, 528 U.S. 470, 477 (2000) (“We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.”). Thus, such an omission, if proven, constitutes constitutionally deficient performance as a matter of law. Additionally, “to satisfy the prejudice prong of the Strickland test, a defendant who shows that his attorney has ignored his wishes and failed to appeal his case need only demonstrate that, but for the attorney’s deficient performance, he would have appealed.” Gomez–Diaz, 433 F.3d at 792. In other words, to establish prejudice arising from counsel’s failure to appeal when instructed to do so, a defendant need merely show “a reasonable probability that he would have appealed without regard to the putative merits of such an appeal.” Thompson v. United States, 504 F.3d 1203, 1208 (11th Cir. 2007). A § 2255 petitioner is entitled to an evidentiary hearing if he alleges facts that, if true, would entitle him to relief. Hernandez v. United States, 778 F.3d 1230, 1232 (11th Cir. 2015); see 28 U.S.C. § 2255(b) (stating that a hearing is required “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief”). Because nothing in the record affirmatively contradicted Purnell’s claim that he asked Madden to file a notice of appeal after sentencing, the Court held an evidentiary hearing to determine Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 29 of 51 PageID# <pageID>
30 whether Purnell in fact requested Madden to file a direct appeal. (See Docs. 71, 75). At the evidentiary hearing, the Court heard live testimony from Purnell, Madden, and Purnell’s sister Sabrina Purnell. Purnell testified that “right before” he exited the courtroom after his sentencing hearing, Madden leaned over and asked him whether he wanted to file an appeal, and he “said yes.” (Doc. 75 at 14-15). According to Purnell, Madden asked him what issues he wanted to raise on appeal, and Purnell “told him on the issue I talked to you about.” (Id. at 15). Purnell described the “issue” as “illegal sentence, illegal prosecution, showing prejudice, Court’s error” and indicated that his arguments were predicated on his Louisiana first-time offender pardon. (Id.). Purnell testified that he and Madden had discussed the possibility of filing an appeal earlier in the case. (Id. at 5). Purnell stated that Madden had explained to him that by pleading guilty without a plea agreement, he would not be waiving his appellate rights. (Id.). Purnell testified that he believed they also discussed the possibility of pleading guilty with a plea agreement, but Purnell felt a blind plea was in his best interest because he “would still reserve the right to appeal.” (Id.). Purnell recalled that Madden believed there was no merit to an appeal, and that he and Madden did not see eye-to-eye in that regard. (Id. at 6). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 30 of 51 PageID# <pageID>
31 Purnell testified that he learned Madden had not filed an appeal in March 2021, when he called Madden to find out what was “going on with [his] appeal” and was told no appeal had been filed because there was “nothing to file.”17 (Id. at 7, 15, 17-20). Shortly after speaking to Madden in March 2021, Purnell wrote a letter to the Court asking for his docket sheet, sentencing transcript, and plea agreement.18 (Id. at 7). Purnell called Madden back “like, in April” 2021 because he hadn’t received his guilty plea and sentencing hearing transcripts, and Madden arranged for those documents to be sent to him “maybe a couple of weeks later.” (Id. at 7-8). Purnell then spoke to Madden by telephone a third time to obtain his advice regarding the possibility of filing a § 2255 motion. (Id. at 8-9). 17 Purnell testified that “a couple of days before” his telephone conversation with Madden in March 2021, he asked his sisters Christy and Sabrina to contact Madden. (Doc. 75 at 19). Sabrina Purnell testified that at some point after his sentencing, her brother asked her “to get in touch with the lawyer and see what was going on basically.” (Id. at 22). Sabrina Purnell further testified that she attempted to call Madden “[m]aybe three or four times” and “talked to a secretary or whoever answer the phones.” (Id.). According to Sabrina Purnell, the receptionist took her message and told her that someone would call her back, but she never received a response to her phone calls, despite trying again “[a]fter like a week,” and “then the day after that[.]” (Id. at 22-23). She could not recall when any of these calls took place. (Id. at 22-24). 18 The docket reflects that Purnell’s letter to the Court requesting copies of his “docket sheet, sentencing transcripts, and plea agreement” was postmarked March 16, 2021. (See Doc. 58 at 2). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 31 of 51 PageID# <pageID>
32 Madden testified that he is an assistant public defender who has practiced federal criminal defense exclusively for the past seventeen years and was admitted to this Court in 1989. (Id. at 25). According to Madden, he met with Purnell at the Conecuh County and Monroe County jails on numerous occasions and spoke with him quite a bit on the phone during the pendency of the case. (Id. at 27). Madden testified that he discussed the possibility of an appeal with Purnell early in the case, and that the ability to appeal was an important factor in Purnell’s decision to enter a blind plea because of concern that the sentencing court would impose an above-guideline sentence. (Id. at 25-26, 32). Specifically, Madden testified that he “was very concerned that [Purnell] could get the statutory maximum of ten years in this case” because of the reputation of the sentencing judge and Purnell’s “use of the firearm, firing a firearm around a lot of people.” (Id. at 26). Madden stated that by getting one of the two counts dismissed and entering a blind guilty plea to the remaining count, Purnell was able to preserve the right to appeal in the event they were not satisfied with the sentence he received. (Id.). Purnell ultimately received a sentence of 63 months, which was within the guideline range and well below the ten-year maximum. Madden believed that Purnell “was satisfied . . . that [he] had dodged . . . a longer sentence.” (Id. at 32). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 32 of 51 PageID# <pageID>
33 Madden unequivocally denied that Purnell instructed him to file a notice of appeal after sentencing. (Id. at 27, 32, 39). When asked to confirm whether he was testifying under oath that Purnell did not instruct him to file an appeal, Madden responded: “Yeah. Oh, yes. . . . [T]here was never any instruction to file a notice of appeal.” (Id. at 39). Madden testified that he discussed the possibility of an appeal with Purnell in the “marshal’s lockup” after the sentencing hearing. (Id. at 27). He stated that Purnell seemed to be satisfied with his guideline- range sentence and “was glad Judge Moorer hadn’t gone any higher and that, you know, we discussed the appeal and he didn’t tell me to appeal.” (Id. at 34). Madden recalled that he told Purnell he did not see any grounds for an appeal because Purnell received a guideline sentence and there were “no preserved issues[,]” and that Purnell “understood that and agreed and said, well, you know, if you find something . . . .” (Id.). Madden understood this to mean that Purnell was leaving the decision of filing an appeal up to him in the event he discovered grounds for an appeal, although Madden had made clear to him that he did not see any grounds for an appeal. (Id. at 28, 34, 36). Madden testified that filing a notice of appeal is a simple task, and he noted that appeals are handled by other attorneys in Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 33 of 51 PageID# <pageID>
34 the federal public defender’s office.19 (Id. at 36). Madden testified that his usual practice for determining whether a client wants to file an appeal is to speak to the client in the courtroom after sentencing.20 (Id.). Madden further testified that he always “look[s] at the case again when the judgment and commitment order comes out” before making a final decision as to whether to file a notice of appeal. (Id. at 37). Madden testified that he did that in this case, and that he “remember[s] looking at the Louisiana Constitution issue again.” (Id.). Madden testified that he was not aware of receiving any calls or correspondence from Purnell’s family to check on the status of an appeal. (Id. at 29). He confirmed that the timeline given by Purnell regarding their telephone calls beginning in March 2021 was correct. (Id.). Madden testified that Purnell “may have asked [him] if an appeal was filed” during their conversation in March 2021, and Madden acknowledged that he told Purnell that he had not 19 Specifically, Madden stated: “And I don’t do the appeals. We have two attorneys in my office who do the appeals. But -- so it wasn’t the -- you know, an issue filing it. It was whether there was any reason to file it.” (Doc. 75 at 36). 20 The record reflects that Madden did not file a notice of non- appeal in accordance with the Court’s local rules. See S.D. Ala. Crim. L.R. 44(b)(2). Madden testified that in his experience, a notice of non-appeal is not always filed in a case where a defendant does not wish to appeal, and that some lawyers never file notices of non-appeal. (Doc. 75 at 35). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 34 of 51 PageID# <pageID>
35 filed an appeal because there would have been no merit to an appeal. (Id. at 29, 31, 39). Based on the testimony summarized above and the record before the Court, the undersigned finds Madden’s testimony that Purnell did not instruct him to file a notice of appeal more credible than Purnell’s testimony to the contrary. Madden testified unequivocally and without hesitation that Purnell never instructed him to file a notice of appeal. Madden provided relatively detailed and reasoned explanations for the actions taken in this case, including the decision to preserve Purnell’s appellate rights by entering a blind guilty plea and the decision not to file an appeal after Purnell received a sentence within the applicable guideline range. Furthermore, Madden is an experienced federal criminal defense lawyer who was well aware of the requirement to file an appeal when requested to do so by a client. And, as Madden credibly explained, filing a notice of appeal is a simple act that would have created minimal inconvenience or additional work for him. By contrast, Purnell is a convicted felon with an obvious motive for untruthfulness as he strives to extricate himself from his 63-month sentence. As noted, Purnell claims that he directed Madden to file an appeal immediately after sentencing based on his alleged restoration of rights under the Louisiana Constitution. However, according to Purnell’s reply brief in this matter, at the Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 35 of 51 PageID# <pageID>
36 time he presented this issue to Madden during his criminal proceedings, “the lead on this research didn’t seem solid to [Purnell] and it seem[ed] more like speculation.” (Doc. 68 at 2). Purnell “didn’t find out the exact specifics of the Louisiana state law and the entirety of it until after [he] had been sentenced and [was] in B.O.P. custody where [he] could fully research the law[.]”21 (Id. at 2-3). And Purnell testified that he did not enter BOP custody until January 2021, after the time for him to appeal had expired. (Doc. 75 at 12). The foregoing suggests that Purnell’s manifested interest in an appeal in March 2021, more than three months after his sentencing, was prompted by information or advice he obtained while in BOP custody rather than a belief that an appeal had in fact been filed pursuant to his direct instruction after sentencing. It is also consistent with Madden’s testimony that Purnell agreed with Madden’s assessment after sentencing that he saw no meritorious issues to raise on appeal, but that Purnell nevertheless indicated a desire for Madden to appeal “if [he found] something” upon further review. (See id. at 34). Accordingly, the Court finds that Purnell has not met his burden of showing that Madden was ineffective for failing to file 21 Purnell similarly testified at the evidentiary hearing that he completed the research with respect to the Louisiana first-time offender pardon while he was in BOP custody when he “was able to get on the computer and see everything [himself].” (Doc. 75 at 12-13). However, Purnell stated that his research “basically” confirmed everything he had previously told Madden. (Id. at 13). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 36 of 51 PageID# <pageID>
37 a notice of appeal, because he has not credibly shown that he directed him to do so. The undersigned recognizes that even if no request to appeal is made, “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 to appeal (for example) because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Flores–Ortega, 528 U.S. at 480. An expression that is not sufficient to constitute a request or instruction to appeal may nevertheless show that the defendant reasonably demonstrated to counsel an interest in appealing. Gomez–Diaz, 433 F.3d at 792. In such a situation, the failure to consult constitutes deficient performance, and the defendant is prejudiced if he shows a reasonable probability that he would have timely appealed but for counsel’s failure to consult with him about an appeal. Flores–Ortega, 528 U.S. at 484. Here, however, Purnell does not allege that Madden failed to adequately consult with him about an appeal. On the contrary, Purnell alleges that Madden consulted with him about an appeal immediately after sentencing but simply disregarded his instruction to file an appeal. Purnell also acknowledges that he and Madden discussed the possibility of an appeal earlier in the case in connection with his decision to enter a blind guilty plea. Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 37 of 51 PageID# <pageID>
38 Madden similarly testified that he consulted with Purnell about an appeal after sentencing, although he denied Purnell’s assertion that Purnell requested an appeal at that time. As explained above, the Court finds Madden’s testimony to be more credible than Purnell’s contrary testimony. For the above-stated reasons, Purnell is not entitled to relief on his claim that Madden provided ineffective assistance by failing to file a notice of appeal. B. Ground Two: “Illegal Prosecution” In ground two, Purnell claims that his prosecution under § 922(g)(1) was “illegal” because the state of Louisiana had restored his civil rights, including his right to possess a firearm, at the time of the charged offense. (Doc. 61 at 5; Doc. 61-1 at 6-7). Thus, Purnell argues that he was not in the relevant category of persons prohibited from possessing a firearm under § 922(g)(1) and was not subject to prosecution under that statute. (Id.). As explained in detail in connection with his related ineffective assistance of counsel claim above, Purnell’s assertion that his Louisiana first-time offender pardon precluded the instant prosecution under § 922(g)(1) is without merit. The record reflects that Purnell was under a ten-year disability on firearm possession under Louisiana law at the time of the instant federal offense. See La. Rev. Stat. § 14:95.1(A), (C). He was also ineligible to obtain a concealed carry permit under Louisiana law. See id. at § 40:1379.3. Those restrictions on his ability to Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 38 of 51 PageID# <pageID>
39 possess and transport firearms were sufficient to trigger the unless clause of § 921(a)(20), making his 2001 Louisiana conviction a proper § 922(g)(1) predicate felony conviction. Therefore, notwithstanding his Louisiana first-time offender pardon, Purnell belonged to the relevant category of persons barred from possessing a firearm under § 922(g)(1) at the time of the instant offense. In addition to lacking merit, this claim is procedurally defaulted because Purnell failed to raise it on direct appeal. “Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.” Lynn, 365 F.3d at 1234. “A ground of error is usually ‘available’ on direct appeal when its merits can be reviewed without further factual development.” Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994) (per curiam). In other words, Purnell may not use this collateral attack as “a surrogate for a direct appeal.” Lynn, 365 F.3d at 1232. If a defendant fails to pursue an available claim on direct appeal, he can avoid a procedural bar only by establishing one of two exceptions to the procedural default rule. “Under the first exception, a defendant must show cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error.” Id. at 1234 (emphasis in original). Under the second exception, a court will consider “a procedurally defaulted claim, Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 39 of 51 PageID# <pageID>
40 without a showing of cause or prejudice, to correct a fundamental miscarriage of justice.” Fortenberry v. Haley, 297 F.3d 1213, 1222 (11th Cir. 2002) (per curiam). To meet this standard, a petitioner must show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Lynn, 365 F.3d at 1234 (quotation omitted). As noted above, Purnell did not file a direct appeal challenging his conviction or sentence in this case. Therefore, Purnell’s claim that his prosecution under § 922(g)(1) was illegal is barred, unless he can satisfy the cause and prejudice or actual innocence exceptions. “[A] prisoner collaterally attacking his conviction can establish cause for a procedural default if he can show that ‘some objective factor external to the defense impeded counsel’s efforts to comply with the . . . procedural rule,’ or that his attorney’s performance failed to meet the Strickland standard for effective assistance of counsel.” Reece v. United States, 119 F.3d 1462, 1465 (11th Cir. 1997) (citation omitted). “Ineffective assistance of counsel may satisfy the cause exception to a procedural bar” only if the ineffective assistance of counsel itself claim has merit. United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000). To make this determination, a court “must decide whether the arguments the defendant alleges his counsel failed to raise Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 40 of 51 PageID# <pageID>
41 were significant enough to have affected the outcome of his appeal.” Id. Because Purnell has not credibly shown that he instructed Madden to file an appeal, he cannot show cause for failing to raise the instant claim of an illegal prosecution on direct appeal based on Madden’s alleged ineffectiveness in failing to file a notice of appeal as requested. See, e.g., Gubanic v. United States, 2012 U.S. Dist. LEXIS 14196, at *17, 2012 WL 260265, at *6 (M.D. Fla. Jan. 30, 2012). Purnell also cannot satisfy the cause and prejudice standard based on counsel’s failure to raise this claim on appeal because the underlying claim lacks merit and had no reasonable prospect of success had it been raised before the trial court or on direct appeal. See Nyhuis, 211 F.3d at 1344. The second exception to the procedural default rule is also unavailing to Purnell, because any potential actual innocence argument rises and falls with the merits of his claim that his right to possess firearms had been sufficiently restored by operation of Louisiana law. Because Purnell’s claim that his rights were sufficiently restored lacks merit, he cannot show that he was actually innocent of possessing a firearm in violation of § 922(g)(1). Accordingly, Purnell is entitled to no relief as to ground two. Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 41 of 51 PageID# <pageID>
42 C. Ground Three: “Illegal Conviction and Sentence” In ground three, Purnell raises an argument similar to that raised in his previous claim. Construed liberally, Purnell’s motion arguably suggests that because he received a first-time offender pardon in connection with his 2001 Louisiana conviction, he did not know that he belonged to the relevant category of persons barred from possessing a firearm under § 922(g)(1) at the time of the charged offense, as required by Rehaif v. United States, 588 U.S. 225 (2019). (See Doc. 61 at 7; Doc. 61-1 at 8- 9). In Rehaif, the Supreme Court held that “in a prosecution under 18 U.S.C. §§ 922(g) and 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” 588 at 237. To the extent Purnell challenges the sufficiency of the evidence supporting the knowledge-of-felon-status element of his § 922(g)(1) offense, he waived the ability to bring this claim by virtue of his knowing and voluntary guilty plea. See United States v. Viscome, 144 F.3d 1365, 1370 (11th Cir. 1998) (holding that appellant’s guilty plea waived his non-jurisdictional challenge to the sufficiency of the evidence on an element of his crime); see also Marks v. United States, 834 F. App’x 568, 569 (11th Cir. 2021) (per curiam) (noting that a “Rehaif error is non-jurisdictional”). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 42 of 51 PageID# <pageID>
43 Purnell’s claim is also without merit. Purnell pled guilty to violating 18 U.S.C. § 922(g)(1), which prohibits any person “who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year” from possessing a firearm. 18 U.S.C. § 922(g)(1). As explained previously, the term “crime punishable by imprisonment for a term exceeding one year” does not include “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored.” Id. at § 921(a)(20). Convictions that fall into this category are not considered qualifying convictions under § 922(g)(1) “unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” Id. In other words, a person who has been convicted of a felony but has had his rights restored pursuant to § 921(a)(20) does not actually have a qualifying conviction for § 922(g)(1) and is therefore not in “the relevant category of persons barred from possessing a firearm.” See Rehaif, 588 at 237. Here, however, the record reflects that Purnell did not fall within the § 921(a)(20) exception to criminal liability under § 922(g)(1), for the reasons outlined in previous sections of this report and recommendation. Moreover, any suggestion that Purnell did not know he belonged to the relevant category of persons barred from possessing a firearm under § 922(g)(1) at the time of the Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 43 of 51 PageID# <pageID>
44 charged offense is directly contradicted by his statements in open court. At his change-of-plea hearing, Purnell acknowledged under oath that he “either plead guilty to or [was] found guilty of possession of a controlled substance on November the 7th of 2001 in New Orleans, Louisiana” and “on August the 1st of 2019, when [he] possessed the firearm, [he knew] that [he] had in fact been convicted of that crime in New Orleans[.]” (Doc. 38 at 12). At his sentencing hearing, Purnell stated more than once that he knew he was not supposed to possess a firearm but “made the conscious decision” to do so anyway.22 (See Doc. 60 at 5-6). Thus, the record clearly demonstrates that when he possessed the charged firearm in this case, Purnell knew that he fell within the relevant category of persons prohibited from possessing firearms under § 922(g)(1). To the extent Purnell came to believe at some point after his arrest on August 1, 2019, that his right to possess firearms had been restored, he cannot show that he lacked the knowledge required by Rehaif, which held that § 922(g) requires that a defendant know of his prohibited status at the time he possessed a firearm. See 22 At sentencing, Purnell stated: “I know I wasn’t supposed to possess a gun. I made the conscious decision that I would rather be judged by 12 than carried by six. Or I’d rather my mama and them see me behind a visitation booth or glass than they see me laying on my back, looking at the roof of the church and they’re crying, telling me they miss me or they love me.” (Doc. 60 at 5- 6). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 44 of 51 PageID# <pageID>
45 Rehaif, 588 at 227 (“To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.”) (emphasis added). Here, the record unambiguously reflects that Purnell knew he had the relevant status as a convicted felon at the time he possessed the firearm in this case. Thus, his later-obtained - and incorrect - belief that the restoration-of- rights exception in § 921(a)(20) exempted him from the prohibition on firearm possession under § 922(g)(1) cannot negate the knowledge-of-felon-status element required by Rehaif. In addition to the foregoing, Purnell’s claim is procedurally defaulted because he did not raise it on direct appeal and has failed to establish either of the exceptions to the procedural default rule. For the above-mentioned reasons, Purnell is entitled to no relief as to ground three. D. Ground Four: “Court’s Error, Showing Prejudice” Purnell’s final claim for relief is that the district court erred by allowing into evidence “an extremely edited video that did not display the whole factual ordeal to uphold a[] (cross reference, enhancement).” (Doc. 61 at 8; Doc. 61-1 at 10-12). Essentially, Purnell appears to contend that the sentencing court miscalculated his offense level by improperly applying the attempted murder cross-reference based on “edited video” of the Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 45 of 51 PageID# <pageID>
46 altercation outside the restaurant on May 12, 2019, which resulted in a significantly higher guideline imprisonment range. (See id.). As an initial matter, it is doubtful whether Purnell’s claim of trial court error is cognizable under 28 U.S.C. § 2255. “[N]onconstitutional claims can be raised on collateral review only when the alleged error constitutes a fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure.” Burke v. United States, 152 F.3d 1329, 1331 (11th Cir. 1998) (quotation omitted). “An allegation that a given sentence is contrary to the sentencing guidelines is a non- constitutional issue that does not provide a basis for collateral relief in the absence of a complete miscarriage of justice.” Mosquera Estupian v. United States, 2007 U.S. Dist. LEXIS 65810, at *8, 2007 WL 2669198, at *3 (M.D. Fla. Sept. 6, 2007); see Clinton v. United States, 2010 U.S. Dist. LEXIS 161289, at *24, 2010 WL 11623603, at *9 (S.D. Ala. Aug. 12, 2010) (finding that petitioner’s claim that the trial court used improper evidence to enhance his sentence was not cognizable in a § 2255 proceeding), report and recommendation adopted, 2010 U.S. Dist. LEXIS 161290, 2010 WL 11623591 (S.D. Ala. Oct. 22, 2010); Mosquera Estupian, 2007 U.S. Dist. LEXIS 65810, at *7-8, 2007 WL 2669198, at *3 (finding that petitioner’s claim that the district court erred in calculating his sentence under the guidelines by admitting hearsay Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 46 of 51 PageID# <pageID>
47 evidence and denying his minor role request were not cognizable in a § 2255 proceeding). In addition, Purnell procedurally defaulted this claim by failing to raise it on direct appeal. He has not shown cause to excuse the default or demonstrated actual prejudice from the claimed error. He has also failed to show that he is actually innocent of the § 922(g)(1) offense to which he pled guilty. Therefore, Purnell is barred from collaterally attacking his conviction or sentence based on the district court’s alleged error in “allowing” the “extremely edited video.” Even if it were proper to address this claim in the instant § 2255 proceeding, Purnell would be entitled to no relief on the merits. For the reasons previously outlined in connection with his related ineffective assistance of counsel claim, Purnell’s contention that the sentencing court should have not considered the “edited video” in determining his sentence rests on a fundamentally flawed factual edifice. Contrary to Purnell’s assertions, the Court neither discussed the video nor admitted it into evidence during his sentencing hearing,23 and there is simply nothing in the record to indicate that the Court considered or 23 Purnell’s assertion that the Court acknowledged that the video was edited appears to be based on a misreading of the sentencing hearing transcript. (See Doc. 60; Doc. 61 at 8). Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 47 of 51 PageID# <pageID>
48 relied on the video in determining Purnell’s sentence. Accordingly, Purnell is entitled to no relief as to ground four. IV. CERTIFICATE OF APPEALABILITY Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings, the undersigned recommends that a certificate of appealability in this case be GRANTED, but only as to one issue. See Rules Governing § 2255 Proceedings, R. 11(a) (“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court’s denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1). A certificate of appealability may be issued only where “the applicant has made a substantial showing of the denial of a constitutional right.” Id. at § 2253(c)(2). When a habeas petition is dismissed on procedural grounds without reaching the merits of an underlying constitutional claim, a certificate of appealability “should issue [only] when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a habeas petition is denied on the merits of the underlying Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 48 of 51 PageID# <pageID>
49 constitutional claims, a certificate of appealability may issue only when the petitioner demonstrates “that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 483-84 (“To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that . . . includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.”) (quotation omitted); accord Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). After reviewing the issues presented in light of the applicable standards, the Court concludes that Purnell should be granted a certificate of appealability, but only on the issue of whether his counsel was ineffective for failing to file a notice of appeal after Purnell allegedly requested counsel to do so, which rests primarily upon a determination of credibility. The undersigned concludes that reasonable jurists would not find the Court’s disposition of Purnell’s other claims wrong or debatable, and that none of the other issues presented are adequate to deserve encouragement to proceed further. Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 49 of 51 PageID# <pageID>
50 V. CONCLUSION For the foregoing reasons, it is recommended that Petitioner Alden G. Purnell’s motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (Doc. 61) be DENIED, that this action be DISMISSED with prejudice, and that judgment be entered in favor of the Respondent, the United States of America, and against the Petitioner, Alden G. Purnell. It is further recommended that a certificate of appealability be GRANTED, but only on the issue of whether Purnell’s counsel was ineffective for failing to file a notice of appeal after allegedly being requested to do so. NOTICE OF RIGHT TO FILE OBJECTIONS A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge’s findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 50 of 51 PageID# <pageID>
51 appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge’s report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing done by the Magistrate Judge is not specific. DONE this 18th day of October, 2024. /s/ SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE Case 1:20-cr-00025-TFM-B Doc# 77 Filed 10/18/24 Page 51 of 51 PageID# <pageID>
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