USA v. Aguirre-Jeronimo et al

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
V. Civil No. 11-5141
Criminal No. 10-50110-002
AMADO CORREA-SANTOS DEFENDANT/MOVANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On April 9, 2012, the Defendant/Movant Amado Correa-Santos
(hereinafter “the Defendant”) filed a pro se 28 U.S.C. § 2255
motion. (Doc. 179.) The Defendant was appointed counsel and
counsel filed an amended § 2255 motion on December 13, 2012.
(Doc. 201.) The Government filed a Response (Doc. 203), and an
evidentiary hearing was conducted on April 16, 2013. A
supplemental evidentiary hearing was conducted on May 3, 2013.
The parties submitted post-hearing briefs (Docs. 215, 218), and
the matter is now ripe for consideration. The undersigned, being
well and sufficiently advised, finds and recommends as follows:
BACKGROUND
On January 13, 2011, a second superseding four-count
indictment was issued against the Defendant and five co-
Defendants. (Doc. 62.) Defendant was charged in Count One of the
indictment with conspiring to distribute more than 50 grams of
methamphetamine, in violation of 21 U.S.C. § § 841(a)(1),
841(b)(1)(A)(viii), and 846.
Defendant proceeded to a jury trial, represented by his
appointed counsel, Mr. Drew Ledbetter, on April 12, 2011. A
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pretrial conference was conducted and a jury was selected on that
date, with the trial scheduled to commence the following morning.
Instead of proceeding to trial on the morning of April 13, 2011,
Defendant waived indictment and pled guilty, pursuant to a written
plea agreement, to an information charging him with conspiring to
distribute an unspecified amount of methamphetamine, in violation
of 21 U.S.C. § § 841(a)(1) and 846. (Docs. 116, 117, 120.)
On August 4, 2011, a sentencing hearing was held and
Defendant was sentenced to 240 months imprisonment, five years
supervised release, and a $25,000.00 fine. (Doc. 137.) Defendant
did not file a direct appeal.
In the amended § 2255 motion filed by appointed counsel,
Defendant argues that his trial counsel, Mr. Ledbetter, was
ineffective in failing to appeal his sentence. Defendant asserts	1
that he would have appealed: (1) the denial of two points for
acceptance of responsibility; (2) the application of a four point
enhancement for being a leader or organizer of the offense; and
(3) the attribution of 5 pounds of methamphetamine to him under
the conspiracy. Defendant concedes that grounds (1) and (2) would
have been weak arguments on appeal. With regard to ground (3),
Defendant points out that Mr. Ledbetter objected at sentencing to
Defendant being held accountable for the 5 pounds of
Defendant raised additional grounds in his original pro se § 2255 motion, but appointed	1
counsel advised the Court at the evidentiary that these grounds are not being pursued.
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methamphetamine seized during the traffic stop of a Co-Defendant.
Defendant asserts:
A co-defendant in this case named Mario Lopez called
[Defendant] from Iowa and asked him if he wanted five
pounds of methamphetamine. [Defendant] told Mario Lopez
that he was not interested in this five pounds. This
conversation was intercepted and recorded by federal
agents. Despite [Defendant] declining the offer
proposed by Mario Lopez, the District Court attributed
the entire five pounds to [Defendant] as relevant
conduct and he was sentenced accordingly. . . .
[Defendant] contends that he was responsible for two
ounces of methamphetamine . . . It is [Defendant’s]
contention that his offense level should have been at a
level 26 based on two ounces of methamphetamine which
was attributable to him. If [Defendant] had an offense
level of 26 he would have been in the guideline range to
receive a sentence of 78-97 months. Instead,
[Defendant] was sentenced based on an offense level of
42 and received the statutory maximum of 240 months.
Mr. Santos . . . would have appealed the sentence given
to him based on the five pounds being attributed to him.
(Doc. 215 at pgs. 3-4.)
EVIDENTIARY HEARING EXHIBITS
Defendant’s Exhibit One is an affidavit signed by Mr.
Ledbetter on January 14, 2013, which affidavit the Government
attached to its response in opposition to Defendant’s § 2255
motion. In this affidavit, Mr. Ledbetter stated:
Mr. Correa-Santos was aware of the fourteen-day
deadline to file an appeal. Counsel met with Mr.
Correa-Santos for three hours after his sentencing
hearing on August 5, 2011, to discuss his appeal rights.
During this meeting, counsel repeatedly informed Mr.
Correa-Santos of his right to appeal the sentence and
the fourteen-day deadline to file a notice of appeal.
Mr. Correa-Santos repeatedly voiced that he did not wish
to appeal his sentence during this meeting.
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Counsel did not hear from Mr. Correa-Santos until
October 17, 2011, when Mr. Correa-Santos contacted
counsel by letter over two months after he was
sentenced. (emphasis added).
Defendant’s Exhibit Four is a jail log reflecting that Mr.
Ledbetter did not visit Defendant at the jail following his
sentencing hearing. Court’s Exhibit One is Mr. Ledbetter’s
Criminal Justice Act (“CJA”) voucher, which reflects the last time
entry claimed for work on Defendant’s case to be 2.5 hours on the
date of the sentencing hearing.
Defendant’s Exhibit Five is a letter from Defendant to Mr.
Ledbetter dated October 17, 2011, inquiring: “I would like to know
how my appeal is coming alone [sic]. When you done [sic] can you
send me a copy of whatever you put in the court.” Defendant’s
Exhibit Two is Mr. Ledbetter’s response, dated November 1, 2011,
advising the Defendant:
I am not your appeal lawyer, and I am not working on any
appeal in your case. You and I discussed your options
to file an appeal after your plea and sentencing
hearing, and you received your paperwork explaining your
rights to an appeal. It was my understanding at that
time that you did not want to file an appeal, and that
you just wanted to be taken to federal prison as soon as
possible. I advised you on your right to file an
appeal, but it was my understanding you had no desire to
file an appeal.
I will be happy to help in any way that I can, but I
have not been retained or appointed to represent you on
an appeal.
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Mr. Ledbetter’s Testimony
Mr. Ledbetter testified that while Defendant spoke some
English, he always had an interpreter present during his
conversations with Defendant. According to Mr. Ledbetter,
“[Defendant] and I had a connection. I knew him very well and he
knew me very well. We were able to look at each other and
communicate. . . . [He] and I were good at communicating with each
other.” (Doc. 213 at pg. 29.) The undersigned notes that in his
supplemental statement submitted in support of his CJA voucher
requesting compensation in excess of the statutory limit, Mr.
Ledbetter stated:
My client did not speak English so I had to use an
interpreter for every conversation and meeting. . . .
The language barrier made communication more difficult.
. . . My client was very distrustful of me in the
beginning because I was a government appointed lawyer.
He is also a very prideful person and a stubborn person.
He used the language barrier at times to make the
already tense situation more difficult.
(Court’s Ex. 1 at pg. 8.)
Mr. Ledbetter acknowledged that his affidavit (Def.’s Ex. 1)
was incorrect in stating that he met with Defendant for three
hours on August 5, 2011, the day after Defendant’s sentencing
hearing. Mr. Ledbetter explained:
Mr. Fowlkes [the Government’s attorney] and I have
discussed this. That three-hour conversation happened
on the day that we changed our plea. We went . . . in
the holding cell . . . of this building, we had a long
conversation with Paul Cottrell [a Homeland Security
Investigations agent] and one other DEA agent. Maria
[Abdin], the translator, was present. Courtney Cline [a
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lawyer who assisted him in the case] was also present.
That was the day of that long conversation. And so Mr.
Fowlkes and I realized this affidavit was incorrect
after we had signed it and prepared it. . . .
(Doc. 213 at pgs. 20-21.)
When asked specifically whether he spoke with Defendant for
three hours about his right to appeal on the day of the plea
hearing, Mr. Ledbetter explained:
What happened . . . was we went downstairs, and we were
alone for – I’m guessing here, but it was an hour, maybe
more than an hour, before Paul Cottrell and Mr. Fowlkes
could get downstairs. . . . We talked about what was
going to happen in the future. We discussed that there
would be a pre-sentence report.
We discussed that we’d have the right to file objections
to the pre-sentence report. We discussed that there
would be a hearing, and we discussed that he could
appeal after that hearing. So we had – we had a long
conversation about the process that was coming up. And
I know that the appeal was a part of that conversation.
(Id. at pg. 21.)
According to Mr. Ledbetter, this was the first conversation
he had with Defendant about the potential for an appeal and,
during this conversation, the Defendant said, “There will be no
appeal. I just want to do my time.” (Id. at pg. 43.) Mr.
Ledbetter testified that he had other meetings with Defendant
prior to the sentencing hearing and they discussed “the process,
that the judge would sentence, and we would have the opportunity
to appeal. . . . He never indicated that he wanted an appeal. And
on more than one occasion, he said very flatly, ‘I just want to
get to federal prison and do my time.’” (Id. at pg. 45-46.)
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Mr. Ledbetter testified that immediately after the sentencing
hearing, he had another discussion with Defendant about the
possibility of an appeal. Mr. Ledbetter recalled that this
discussion took place in the courtroom immediately after the
sentencing hearing adjourned and lasted ten or fifteen minutes,
“maybe not that long, even.” (Id. at pg. 25.)
Mr. Ledbetter testified that the court interpreter, Ms. Maria
Abdin, translated the conversation he had with Defendant after his
sentencing hearing, and Ms. Cline was also present. Mr. Ledbetter
initially testified that Defendant “told me specifically he did
not want an appeal.” (Id. at pg. 24.) Upon further questioning,
Mr. Ledbetter testified:
I . . . told him in this room if he wanted to file an
appeal, we had a time limit to do that as the judge had
just instructed. And he said, “I just want to do my
time,” or something to that effect. I can’t remember
his specific words, but the thrust of it was he was in
a hurry to get out of county jail and get to federal
prison and . . . do his time. He did not indicate that
he wanted an appeal.
(Id. at pg. 26.) When asked whether “it was Maria [Abdin] telling
you he didn’t want to appeal or if you got that directly from
[Defendant],” Mr. Ledbetter, responded, “I can’t remember if - -
she probably answered me back in Spanish . . ., but it could have
been [Defendant] answering me in English.” (Id. at pg. 31.)
Mr. Ledbetter acknowledged that in discussing the possibility
of an appeal, it was just the procedure – “an explanation of these
are the steps that are going to happen next.” (Id. at pg. 22.)
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As to whether he discussed with Defendant possible issues for
appeal, Mr. Ledbetter testified:
Q. [You] keep talking about right to appeal and him
saying no. . . . To me, you’ve got to discuss what
you would appeal. Did you discuss what you would
appeal? (emphasis added).
A. We . . had been discussing his right to an appeal
as we went through the process, from entry of
plea, through pre-sentence report, to the day of
sentencing. He knew he would be appealing the
judge’s decision at . . . the sentencing hearing.
. . .
Q. Well, at sentencing, he gets 240 months. If he
got attributed just two ounces, I show his
sentence could be as low as 78 months. Did that
discussion ever occur in court when you asked him
if he wanted to appeal?
A. I don’t think so. We knew that a likely outcome
at the court hearing was that that five pounds
would be attributable to him.
Q. Which it was, but my question is, did you explain
his alternatives in an appeal?
A. I’m not sure I went into specific alternatives for
the appeal. I know that we talked about whether
or not he wanted to appeal the judge’s decision,
and he said no. . . .
Q. Did you ever discuss with him what issues there
would be for appeal and whether an appeal would be
worthwhile?
A. I’m not sure that I did. . . . [T]he substance of
my talks with him about the appeal . . . [were]
that whatever Judge Hendren decided to do on the
day of sentencing, we would have the right to
appeal. I’m not sure I got much more specific
than that.
(Id. at pgs. 28-29.)
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According to Mr. Ledbetter, at the conclusion of the
sentencing hearing, he told Defendant that if he ever needed
anything to call him, and they shook hands and had a “warm and
friendly goodbye.” (Id. at pg. 44.) Mr. Ledbetter explained that
Defendant had the ability to call him collect from the jail if he
changed his mind about an appeal, but, according to his law firm
records, neither Defendant nor anyone on his behalf attempted to
call. The undersigned notes that in his supplemental CJA
statement, Mr. Ledbetter stated, “Telephone communication was
impossible because my client could not speak English, so each
meeting with my client had to be in person in order for an
interpreter to be present.” (Court’s Ex. 1 at pg. 8.)
Defendant’s Testimony
Defendant denied ever having a three hour discussion with Mr.
Ledbetter about an appeal prior to his sentencing hearing.
Defendant testified that at his sentencing hearing:
When the judge sentenced me, he said I had 14 days to
appeal. I asked my attorney, “What is that?” When he
was explaining that, that’s when the officer said,
“you’ve got to go because we’re going to close up.”
That’s when he said, “I’m going to go see you to talk
about the appeal, and I will take you the papers.”
(Doc. 213 at pg. 63.)
Defendant testified that this few minute conversation at the
end of the sentencing hearing was the only time he had any
discussion with Mr. Ledbetter about an appeal. Defendant denied
telling Mr. Ledbetter that he did not want to appeal and testified
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that Mr. Ledbetter never came to see him after the sentencing
hearing. Defendant insisted that he would have appealed if Mr.
Ledbetter had come to see him as he said he would. When asked
specifically whether he ever asked Mr. Ledbetter to file an
appeal, Defendant testified:
A. My answer is this. Once he said he was going to
come see me, I took it as a done deal that he was
going to appeal.
Q. You’re still not answering my question. You never
asked Mr. Ledbetter to file an appeal on your
behalf, did you?
A. No, because first I needed to know what the appeal
was.
Q. So the answer is no. You never asked him to file
an appeal, did you? Is that right?
A. It depends on the way he wants to take it.
Q. Did you ever ask Mr. Ledbetter to file an appeal
on your behalf? Yes or no?
A. Not specifically.
(Id. at pg. 68.)
As to what efforts he made to contact Mr. Ledbetter after the
sentencing hearing, Defendant testified that he tried to make a
collect call to Mr. Ledbetter during the 14-day period he had to
appeal. According to Defendant, “[a] machine answered that I had
$30 credit following those options in Spanish, but nobody ever
answered.” (Id. at pg. 66.) Defendant testified that his
cellmate offered to have his wife, “Tanya,” contact Mr. Ledbetter
for Defendant. Defendant’s testimony at the hearing was somewhat
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confusing with regard to “Tanya’s” attempts to contact Mr.
Ledbetter. In his declaration submitted in support of his § 2255
motion, Defendant explained that “Tania” tried to call Mr.
Ledbetter on several occasions, but he never answered her call, so
she e-mailed or texted Mr. Ledbetter, and he responded that he
would go visit the Defendant at the jail. Defendant testified
that Mr. Ledbetter never came to visit him at the jail, and
Defendant did not make any further attempts to contact Mr.
Ledbetter at that juncture because he was in transport to his
designated Bureau of Prisons facility.
Defendant testified that he did not attempt to contact Mr.
Ledbetter again until he wrote the October 27, 2011 letter to Mr.
Ledbetter, inquiring about the status of the appeal. Defendant
explained that he did not write Mr. Ledbetter before this because
he “didn’t think it was necessary from what he had said to me.”
(Id. at pg. 71.) Defendant also noted that he does not know how
to write, and another prisoner had to help him write the letter.
Defendant was transported from the local jail on August 31, 2011,
and testified that he did not arrive at his designated Bureau of
Prisons facility until about a month later. Defendant testified
that when he arrived at this facility he started asking other
prisoners about the appeal process “[a]nd that’s when they asked
me, ‘Did you appeal from the beginning?’ And that’s when I told
them my attorney never showed up.” (Id. at pg. 80.) Defendant
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testified that it was at this point that he decided to write Mr.
Ledbetter a letter to inquire about the status of his appeal.
Courtney Cline’s Testimony
Ms. Cline testified that she and Mr. Ledbetter are law
partners and that she worked with Mr. Ledbetter on Defendant’s
case, in the beginning, as a law clerk, and later as a licensed
attorney. Ms. Cline testified that following the sentencing
hearing, she, Mr. Ledbetter, Ms. Abdin, and the Defendant “kind of
huddled right in front of the bench,” and:
I don’t remember exactly verbatim what was said, but the
context of the conversation was [Mr. Ledbetter] was
making sure [Defendant] understood what had just
happened at the sentencing hearing, and he explained
that he did, and it was clear that – [Mr. Ledbetter]
explained the appeal process very briefly, and it was
clear that – from my understanding and [Mr. Ledbetter’s]
understanding, [Defendant] did not want an appeal. He
never specifically asked for one. . . . He was very
clear that he wanted to go do his time, and just wanted
to go to federal prison and not appeal.
(Id. at pgs. 84-85.) Ms. Cline estimated that the conversation
lasted at most between ten and fifteen minutes. Ms. Cline
testified that Mr. Ledbetter did not say anything about going to
see Defendant at the jail.
When questioned by the Court as to what she specifically
recalled Mr. Ledbetter saying to Defendant about an appeal and
what Defendant said in response, Ms. Cline testified:
A. [Mr. Ledbetter] told [Defendant] [that] he
had the 14 days to appeal if he wished to do
so, and he could . . . contact him. And he
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made sure he had his contact information. We
were never contacted. . . .
Q. And what did [Defendant] say in response to
that? . . .
A. He said okay.
Q. All you can recall him saying is okay?
A. I don’t remember exactly. I’m just
paraphrasing a conversation. It just [was]
understood that he – he did not – he did say
he understood what the appeal was.
Q. He did say “I understand what an appeal is”?
A. I don’t know if he said that verbatim, but it
was – it was just obvious.
Q. Well, I need you to explain to me why it’s
obvious because that’s greatly in dispute
here.
A. Yes, Your Honor.
Q. So what do you recall Mr. Santos saying? Did
he say just “Okay”? Did he say “I don’t want
to appeal”? What do you recall? Or do you
just not recall?
A. I guess I – I can’t recall. . . .
Q. You said it was clear he didn’t want to
appeal. So if you don’t remember what his
response was, why was it clear that he did
not want to appeal?
A. I don’t remember whether [Mr. Ledbetter] said
that day right then in that . . . brief
amount of time “Amado, do you want to appeal
this.” He explained the process for an
appeal and made sure that he understood,
asking if he understood. He said he
understood the appeal process, but he did not
state that he wanted to appeal. And [Mr.
Ledbetter] – they said goodbye. [Mr.
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Ledbetter] said, “If you need me, you can
contact me,” and he said, “Okay.” . . .
Q. So when you . . . testified it was clear he
did not want an appeal.
A. I think I’m using that in just context from
all of the conversations that we had with
him. We met with him many times, and we knew
– we just had a good rapport. And as Drew
testified earlier, we just kind of understood
each other.
Q. But from anything Mr. Santos said that day,
was it clear . . . that he did not want to
appeal?
A. Not specifically. . . .
Q. Does [a] lawyer have a duty to consult about
what [a Defendant] could appeal?
A. Yes.
Q. Was that done in [Defendant’s] case?
A. Yes.
Q. When?
A. Probably that . . . afternoon after the
change of plea.
Q. Before sentencing?
A. Yes. . . .
Q. Did Mr. Ledbetter ever consult with
[Defendant] about what could be appealed if
sentencing did not go his way?
A. I believe so.
Q. When, and what was the consultation?
A. [Mr. Ledbetter] explained that if [Defendant]
did not like or did not agree with the
sentence that Judge Hendren placed upon him,
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it was appealable, and they could appeal that
sentence. That it was completely up to Judge
Hendren what range was given to [Defendant]
and it was appealable. I know that [Mr.
Ledbetter] explained that to him. . . . prior
to sentencing. . . . I don’t know if it was
after or before the pre-sentence report.
(Id. at pgs. 90-94.)
Maria Abdin’s Testimony
At the supplemental hearing scheduled in this matter, Ms.
Abdin testified that she has interpreted for this Court since
2005, and she served as the interpreter at Defendant’s sentencing
hearing. Ms. Abdin testified that if the Defendant and his
attorney had a conversation following the sentencing hearing, she
would have been there to interpret it, but she did not recall the
contents of any such conversation. According to Ms. Abdin,
attorneys and clients usually do not have more than just a few
minutes to communicate following a hearing because the U.S.
Marshals come and take the Defendant immediately after the
hearing.
Ms. Abdin recalled meeting with Mr. Ledbetter and Defendant
in a holding cell downstairs the day of the plea hearing. Ms.
Abdin did not recall the meeting lasting more than a half-hour.
When asked whether it was possible that it lasted three hours, Ms.
Abdin testified that it was possible, but she did not think it
could have been a three-hour meeting. As to the nature of the
meeting, Ms. Abdin testified that Mr. Ledbetter, Mr. Fowlkes and
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Mr. Cottrell were there, as well as some other agents, and she
believed they were trying to ask Defendant some questions about
his brother and about a truck. When asked whether Defendant’s
right to appeal was discussed during this meeting, Ms. Abdin
testified that the “conversation was of a different nature. I
don’t think they were talking about the rights . . . of appeal at
that point, because I don’t think we had gotten to the sentencing
at that point.” (Doc. 214 at pg. 13.)
APPLICABLE LAW
Ineffective assistance of counsel claims generally require a
Defendant to show that his counsel’s performance “fell below an
objective standard of reasonableness” and that he was prejudiced
by this deficiency. See Strickland v. Washington, 466 U.S. 668,
687-88 (1984). However, an attorney’s failure to file a notice of
appeal after being instructed to do so by his client constitutes
ineffective assistance entitling a Defendant to § 2255 relief, and
no inquiry into prejudice or likely success on appeal is
necessary. See Watson v. United States, 493 F.3d 960, 963-64 (8th
Cir. 2007). For a Defendant to succeed on such a claim, he must
show that he made his desire to appeal evident to his attorney.
See Yodprasit v. United States, 294 F.3d 966, 969 (8 Cir. 2002).	th
“A bare assertion by the [Defendant] that he made a request is not
by itself sufficient to support a grant of relief, if evidence
that the fact-finder finds to be more credible indicates the
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contrary proposition.” Barger, 204 F.3d 1180, 1182 (8 Cir.	th
2000). A court is required to conduct an evidentiary hearing
before making such factual determinations. See Watson, 493 F.3d
at 964.
Where a Defendant has not specifically requested an appeal,
the reasonableness of counsel’s conduct is judged by whether
counsel had a duty to consult the Defendant about the possibility
of an appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000).
The term “consult” “convey[s] a specific meaning – advising the
Defendant about the advantages and disadvantages of taking an
appeal, and making a reasonable effort to discover the Defendant’s
wishes.” Id. The duty to consult is triggered where there is
reason to believe that a rational Defendant would want to appeal
or where the client has reasonably demonstrated an interest in
appealing. See id. at 480. The Supreme Court in Roe observed,
“We expect that courts evaluating the reasonableness of counsel’s
performance using the inquiry we have described will find, in the
vast majority of cases, that counsel had a duty to consult with
the defendant about an appeal.” Id. at 481. To show prejudice,
a Defendant must demonstrate that there is a reasonable
probability that, but for counsel’s deficient failure to consult
with him about an appeal, he would have timely appealed. Id. at
484. While showing nonfrivolous grounds for an appeal may give
weight to the contention that the Defendant would have appealed,
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such a showing is not required to satisfy the prejudice
requirement where there are other substantial reasons to believe
that the Defendant would have appealed. As the Court in Roe
observed:
[I]t is unfair to require an indigent, perhaps pro se,
defendant to demonstrate that his hypothetical appeal
might have had merit before any advocate has ever
reviewed the records in his case in search of
potentially meritorious grounds for appeal. Rather, we
require the defendant to demonstrate that, but for
counsel’s deficient conduct, he would have appealed.
Id. at 486.
DID THE DEFENDANT EXPRESS A DESIRE TO APPEAL?
According to the Defendant, the only conversation he ever had
with Mr. Ledbetter about an appeal was the brief conversation
following the sentencing hearing when the sentencing judge advised
him that he had 14 days to appeal and Defendant asked Mr.
Ledbetter, “What is that?” Defendant testified that Mr. Ledbetter
started to explain, but did not get a chance to because Defendant
was escorted away by the Marshal’s Service. Defendant testified
that Mr. Ledbetter stated he would go to the jail to talk to the
Defendant about the appeal, but Mr. Ledbetter never did so.
Defendant acknowledged that he did not specifically ask Mr.
Ledbetter to file an appeal, explaining that “first I needed to
know what the appeal was,” and “[o]nce he said he was going to
come see me, I took it as a done deal that he was going to
appeal.” (Doc. 213 at pg. 68.)
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By Defendant’s own admission, he did not specifically request
that Mr. Ledbetter file an appeal. According to Defendant, he did
not get the opportunity to do so because Mr. Ledbetter never came
to see him at the jail as he said he would. T h e n e x t
question then is whether Defendant advised Mr. Ledbetter that he
did not want to appeal. Defendant denied telling Mr. Ledbetter
that he did not want to appeal and insisted that he would have
appealed if Mr. Ledbetter had come to see him at the jail as he
said he would. The undersigned credits Defendant’s testimony on
this issue. Mr. Ledbetter appeared to have difficulty recalling
the details of when and where he discussed the possibility of an
appeal with Defendant, and also had difficulty recalling what
Defendant specifically said with regard to whether or not he
wanted to appeal.
Initially, Mr. Ledbetter stated in an affidavit that he met
with the Defendant the day after the sentencing hearing (which
meeting would have had to have taken place at the jail); that he
discussed Defendant’s appeal rights with him for three hours; and
that Defendant “repeatedly voiced that he did not wish to appeal
his sentence during this meeting.” (Def.’s Ex. 1.) At the
hearing, Mr. Ledbetter explained that he was mistaken in his
affidavit and that this meeting actually occurred in the holding
cell at the courthouse (not at the jail) on the day of Defendant’s
change-of-plea hearing (not the day after sentencing); that the
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conversation was actually about the process that would follow the
plea - - the issuance of a pre-sentence report, the right to file
objections, a sentencing hearing, and Defendant’s right to appeal
after the hearing; and this conversation lasted only an hour or so
(not three hours). Ms. Abdin, who Mr. Ledbetter testified was
present to interpret during this meeting, did not believe the
meeting lasted more than half an hour. Further, Ms. Abdin
recalled the conversation being of a “different nature” and did
not recall talking about Defendant’s appeal rights during this
meeting.
As to the conversation he had with Defendant following the
sentencing hearing, Mr. Ledbetter initially testified that
Defendant “told me specifically he did not want an appeal.” (Doc.
213 at pg. 24.) Mr. Ledbetter subsequently acknowledged, however,
that he could not remember the Defendant’s specific words, but he
said something to the effect of “I just want to do my time, . . .
the thrust of it was he was in a hurry to get out of county jail
and get to federal prison and - - do his time. He did not
indicate that he wanted an appeal.” (Id. at pg. 26.) Further,
Mr. Ledbetter could not recall if Defendant said this directly to
him or if Ms. Abdin translated it for Defendant. Ms. Cline, who
was present during the brief conversation following the sentencing
hearing, likewise had difficulty recalling specifics of the
conversation. Ms. Cline initially testified that Defendant “was
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very clear that he wanted to go do his time, and just wanted to go
to federal prison and not appeal.” (Id. at pgs. 84-85.) Upon
further questioning, however, Ms. Cline acknowledged that she
could not recall whether Mr. Ledbetter specifically asked
Defendant “in that . . . brief amount of time” if he wanted to
appeal and she could not recall anything specifically that
Defendant said during that conversation which supported her belief
that it was “clear” he did not want to appeal.
Further, Mr. Ledbetter’s testimony at the hearing was
inconsistent with certain statements he made in his supplemental
CJA statement. Specifically, Mr. Ledbetter testified that he and
Defendant had a “connection . . .[,] were able to look at each
other and communicate[,] . . . [and] were good at communicating
with each other.” (Doc. 213 at pg. 29.) However, in his CJA
statement, Mr. Ledbetter emphasized the difficult relationship he
had with Defendant as grounds for an attorney fee award higher
than the statutory limit - - stating that the language barrier
made communication difficult; that Defendant was, at least
initially, distrustful of him; and that Defendant was stubborn and
used the language barrier “at times to make the already tense
situation more difficult.” (Court’s Ex. 1 at pg. 8.) Mr.
Ledbetter also testified that Defendant had the ability to call
him collect from the jail if he changed his mind and decided he
wanted to appeal. However, in his CJA statement, Mr. Ledbetter
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represented to the Court that all meetings had to be in person
because Defendant could not speak English and “[t]elephone
communication was impossible.” (Id.)
Based upon the foregoing discrepancies and inconsistencies in
Mr. Ledbetter’s affidavit, supplemental CJA statement, and his
testimony, as well as discrepancies and inconsistencies in Ms.
Cline’s testimony, the undersigned credits Defendant’s testimony
and finds that Defendant did not advise Mr. Ledbetter that he did
not want to appeal. The undersigned must, therefore, next address
whether Mr. Ledbetter had a duty to consult with Defendant about
the possibility of an appeal and whether he fulfilled that duty.
DUTY TO CONSULT
As stated above, the Supreme Court has observed that “in the
vast majority of cases, . . . counsel ha[s] a duty to consult with
the defendant about an appeal.” Roe, 528 U.S. at 481. The
undersigned believes that the duty to consult was triggered in
this case under the standard set forth in Roe, as there is reason
to believe that a rational Defendant in Defendant’s position would
want to appeal. Defendant received the statutory maximum
sentence, and thus, had nothing to lose by appealing his sentence
and challenging the denial of acceptance of responsibility, the
enhancement for being a leader or organizer of the offense, and
the drug quantity attributed to him. While Mr. Ledbetter
testified that Defendant did not want to appeal because “he was in
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a hurry to get out of county jail and get to federal prison” (Doc.
213 at pg. 26), the undersigned does not find this to be credible.
Once a Defendant is sentenced, he is committed to the custody of
the Bureau of Prisons. See 18 U.S.C. § 3621(a). Thus, filing an
appeal would not have delayed Defendant’s transfer to federal
prison and such a baseless concern would not have dissuaded a
rational Defendant from pursuing an appeal.
Having found that Mr. Ledbetter had a duty to consult with
Defendant about an appeal, the next question then is whether Mr.
Ledbetter fulfilled this duty. Mr. Ledbetter acknowledged that he
did not discuss with Defendant what issues they could appeal and
did not get “much more specific” than to explain to Defendant that
“whatever Judge Hendren decided to do on the day of sentencing, we
would have the right to appeal.” (Doc. 213 at pgs. 28-29.) This
discussion did not fulfill Mr. Ledbetter’s duty under Roe, 528
U.S. at 478, to advise the Defendant about the advantages and
disadvantages of appealing and to make a reasonable effort to
discover the Defendant’s wishes. Cf. United States v. Van Pham,
722 F.3d 320, 324 (5 Cir. 2013) (counsel failed to reasonably	th
consult with Defendant about an appeal; at most counsel discussed
an appeal in the abstract and even then did so only before the
sentence was pronounced); Thompson v. United States, 504 F.3d
1203, 1207 (11 Cir. 2007) (after sentencing, counsel reiterated	th
that Defendant had a right to appeal, but stated that he did not
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think an appeal would be successful or worthwhile, and Defendant
said “fine”; the content of this exchange did not constitute
adequate consultation, as no information was provided from which
the Defendant could have intelligently and knowingly either
asserted or waived his right to an appeal and no reasonable effort
was made to discover Defendant’s informed wishes regarding an
appeal); Miller v. United States, 150 F. Supp.2d 871, 880 (E.D.
N.C. 2001) (brief comment by attorney after sentencing that
defendant could appeal but she did not think it would help did not
satisfy attorney’s duty to consult; statements to Defendant in
advance of sentencing that he would have a right to appeal a
sentence as of then not yet imposed also did not satisfy the
consulting obligation). The next and final question the
undersigned must address then is whether Defendant was prejudiced
by Mr. Ledbetter’s failure to consult with him about an appeal.
PREJUDICE
The undersigned believes that Defendant has met his burden of
demonstrating that there is a reasonable probability that, but for
Mr. Ledbetter’s failure to consult with him about an appeal, he
would have timely appealed. See Roe, 528 U.S. at 484. As pointed
out above, Defendant had no reason not to appeal and there were
sentencing issues that certainly would have provided grounds for
an appeal. Roe does not require Defendant to demonstrate that his
appeal would have been successful. Further, the undersigned
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credits Defendant’s testimony that he would have appealed if Mr.
Ledbetter had come to see him at the jail as he said he would, and
that he attempted to contact Mr. Ledbetter about the appeal by
telephone and through his cellmate’s wife prior to being
transported to federal prison. Defendant’s subsequent letter to
Mr. Ledbetter indicates that he believed Mr. Ledbetter had, in
fact, filed an appeal for him, as Defendant asked how the appeal
was “coming alon[g]” and asked for a copy of whatever Mr.
Ledbetter had filed with the Court. The undersigned, therefore,
finds that Defendant was prejudiced by Mr. Ledbetter’s deficient
failure to consult with him about an appeal.
CONCLUSION
Based on the foregoing, the undersigned concludes that the
Defendant is entitled to relief on his claim that Mr. Ledbetter
was ineffective in failing to consult with him about an appeal.
Accordingly, the Defendant is entitled to be re-sentenced. See
Barger, 204 F.3d at 1182. The undersigned, therefore, recommends
that Defendant’s § 2255 motion be GRANTED and that Defendant’s
sentence be vacated and a new sentencing hearing be scheduled.
The time for the Defendant to appeal will then run from the date
entry of the new judgment.
The parties have fourteen days from receipt of the report and
recommendation in which to file written objections pursuant to 28
U.S.C. § 636(b)(1). The failure to file timely objections may
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result in waiver of the right to appeal questions of fact. The
parties are reminded that objections must be both timely and
specific to trigger de novo review by the district court.
DATED this 15th day of November, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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