USA v. Morris

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
UNITED STATES OF AMERICA 	RESPONDENT
vs. 	Criminal No.6:18-cr-60014
Civil No. 6:23-cv-06001
RANDALL MORRIS 	MOVANT
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Randall Morris (“Morris”) filed a pro se Motion to Vacate under 28 U.S.C. § 2255 on July
18, 2023. ECF No. 92. Thereafter, Morris was appointed counsel. ECF No. 95. The Government
responded to this Motion on September 29, 2023. ECF No. 98. Morris, through counsel, filed a
Reply on December 22, 2023. ECF No. 107. On May 7, 2024, the Court held a hearing to address
this Motion. ECF No. 111. The Parties have filed post-hearing briefs. ECF Nos. 112, 113.
The Motion was referred for findings of fact, conclusions of law, and recommendations for
the disposition of the case. The Court has reviewed the Motion, the Response, the Reply, the post-
hearing briefs, and the transcript of the hearing. Based upon that review, the Court recommends
this Motion be DENIED.
1. 	Procedural Background1
On July 24, 2018, a grand jury indicted Morris for advertising material involving the sexual
exploitation of a minor, receipt of child pornography, and possession of child pornography. ECF
No. 1. On February 9, 2019, Morris pled guilty to advertising material involving the sexual
exploitation of a minor. ECF No. 18. His written plea agreement filed with the Court that same
day waived his right to appeal the Court’s restitution order. ECF No. 19.
1 The “Procedural Background” is taken from the pleadings and publicly filed documents in this case.
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The Court then ordered a Presentence Investigation Report (“PSR”) be prepared and an
initial draft was filed on April 4, 2019. ECF No. 20. The initial PSR contained details regarding
specific restitution requests made by six child victims. Id. at para. 157. On April 25, 2019, Morris,
through his prior counsel, Assistant Federal Defender Matthew Hill, filed objections to the initial
PSR, none of which related to restitution. ECF No. 24. The Revised Final PSR was issued on April
30, 2019, containing the same six victim restitution requests. ECF No. 25, para. 157).
On June 3, 2019, Morris through Mr. Hill, filed a sentencing memorandum that did not
raise the issue of restitution. ECF No. 30. On January 28, 2022, Hill filed an additional objection
to the Final PSR which was unrelated to restitution. ECF No. 42. A Revised Final PSR was filed,
which again contained the same six restitution requests. ECF No. 45, para. 157.
On February 17, 2022, Hill moved to withdraw as Morris’ counsel (ECF No. 47) and eleven
days later that motion was granted, and Morse Gist was appointed to represent Morris. ECF No.
49. Morris’ sentencing was set for May 3, 2022, in Hot Springs. ECF No. 52. On April 4, 2022,
Gist moved to withdraw as Morris’ attorney. ECF No. 53. That motion was granted, and Ben
Hooten was then appointed as counsel for Morris on April 6, 2022. ECF No. 55.
Three weeks later, Hooten filed a motion and brief in support asking the Court to compel
the United States to make a motion pursuant to Title 18 U.S.C. § 3553(e) in consideration of
Morris’ cooperation against other potential targets. ECF Nos. 58, 59 (“Motion to Compel”). The
Court denied the motion on May 23, 2022. ECF No. 65. The Court found Morris had failed to
make a threshold showing of any improper conduct by the United States, and the government’s
decision not to file a § 3553(e) motion in his case was a rational and permissible policy choice,
within the government’s discretion. Id.
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On June 13, 2022, the Court set Morris’ case for sentencing on June 29, 2022. ECF No.
66. Two days before that hearing, Hooten filed a second sentencing memorandum on Morris’
behalf objecting for the first time to one of the six victim restitution requests – specifically the
request by victim “Andy”. ECF No. 67. Morris did not object to the requests made by the other
five victims.
During the sentencing hearing, the Court advised Morris of his appeal rights and the
deadline for filing a direct appeal. ECF Nos. 68, 103. At the conclusion of the hearing, the Court
sentenced Morris to 234 months imprisonment. ECF No. 69. However, the sentence was adjusted
downward to 180 months imprisonment pursuant to U.S.S.G. § 5G1.3(b)(1), due to an
undischarged term of imprisonment Morris was serving on a related state conviction. Id. The Court
also ordered Morris to pay restitution to the six identified child victims, in certain specified
amounts. As to the victim Andy, the Court ordered restitution in the amount of $10,000 –
substantially less than Andy had requested. Id. The Court ordered restitution to the remaining five
identified victims in the requested amounts. Id.
On July 14, 2022, Hooten filed a motion to reconsider the Court’s Restitution Order as to
all six victims. ECF No. 72 (“Restitution Motion). Morris argued the Restitution Order was
inappropriate because there was not enough evidence presented at sentencing upon which the
Court could predicate findings with respect to the Paroline factors. See Paroline v. U.S., 572 U.S.
434 (2014). The government responded in opposition to that motion. ECF No. 73. The Court
denied the motion on August 15, 2022, finding Morris had not timely objected to the requested
restitution amounts set forth in the PSR, as required by Fed. R. Crim. P. 32(f)(1). ECF No. 75. The
Court found it was within its discretion to accept those undisputed portions of the PSR as findings
of fact, in accordance with Fed. R. Cri. P. 32(i)(3)(A).
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On August 3, 2022, Morris – again through Hooten - moved for an extension of his time
for appealing the denial of his earlier Motion to Compel. ECF No. 74. That motion states Morris
had previously instructed his counsel to file a Motion for Reconsideration concerning restitution
but declined an appeal. Id. at p. 1. The motion for extension also states Morris said he later changed
his mind and sent a letter to Hooten stating he wanted to appeal the Court’s denial of his Motion
to Compel. ECF No. 74. However, the motion also makes clear Hooten did not receive that letter
until on or about August 2, 2022. Id. The Motion for Extension stated Morris’ time for appealing
the denial of his Motion to Compel had begun to run on June 30, 2022, (the day the written
Judgment was entered, following Morris’ sentencing) and had expired on July 14, 2022. ECF No.
74. Accordingly, Morris concluded the Court had discretion to extend his appeal time through
August 14, 2022, pursuant to Fed. R. App. P. 4(b)(4), upon a finding of excusable neglect or good
cause. Id.
On August 29, 2022, the Court denied the Motion for Extension without requiring the
government to respond. The Court found Morris’ time for appealing the denial of his Motion to
Compel began to run on May 23, 2022 – the day the Court entered its order denying that motion
(ECF No. 65) and had therefore elapsed on June 6, 2022. ECF No. 76. The Court found it no longer
had discretion, under Rule 4(b)(5), to extend Morris’ time for appealing the denial of his Motion
to Compel. ECF No. 76.
In January 2023, while Hooten remained his attorney of record – Morris submitted a pro
se filing entitled “Motion to Amend Appeal (Section 2255)” and a supplement, containing
photographs of handwritten letters he said he sent to Hooten between April and July 2022. ECF
Nos. 79, 81 (“First Pro Se Filing”). Despite its reference to 28 U.S.C. § 2255, the Court treated
this filing as a request to reconsider the denial of Morris’ Motion for Extension (ECF No. 80) and
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on February 8, 2023, the Court entered an order denying the relief requested in the First Pro Se
Filing primarily on the basis that courts should not entertain pro se filings by represented parties,
like Morris. ECF No. 85.
In late February 2023, Morris – still represented by Hooten - submitted two additional pro
se filings. ECF Nos. 86, 87. One of those filings, entitled “Response to Court Order Denying
Motion to Reconsider”, stated Hooten had told Morris in September 2022 that he no longer
represented him. ECF No. 86 (“Second Pro Se Filing”). This filing also referenced the handwritten
letters included with his First Pro Se Filing (ECF Nos. 79, 81) arguing they proved: a) Morris
instructed Hooten to appeal the denial of the Motion to Compel via a letter dated June 6, 2022.
(ECF No. 76); and b) Hooten did not advise Morris of the proper deadline for doing so. (ECF No.
86).
Morris’ other February 2023 pro se filing, titled “Motion to Temporarily Stay Judgment
Debt”, asked the Court to prevent the United States from attempting to collect victim restitution,
pending his intended challenge of the Restitution Order. ECF No. 87 (“Third Pro Se Filing”). This
filing was denied by the Court on April 12, 2023. (ECF No. 91).
2. 	§ 2255 Motion
Morris filed the instant § 2255 Motion to Vacate, Set Aside, or Correct Sentence on July
18, 2023. (ECF No. 92). The next day Hooten moved to withdraw as Morris’ attorney. ECF No.
94. On July 20, 2023, Hooten was removed as Morris’ counsel and Bruce Eddy was appointed to
represent Morris. ECF No. 95.
In his motion, Morris indicates he pled guilty and was sentenced on June 29, 2022, to 234
months in prison. ECF No. 97, p. 1. He says he did not appeal from the judgment of conviction
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because “I instructed my attorney to do so.”2 Id. Morris sets forth the following grounds for relief
in his § 2255 Motion:
Ground One: Ineffective Counsel for failing to timely appeal the denial of a Motion
to Compel the government to file a 3553(e).
I sent the court copies of my timely letters to counsel requesting him to appeal this
denial. I believe these letters are filed under ECF No. 81 but I am not sure as the
court has recently refused to send me copies of them despite that I had sent the court
notices in March 2023 informing it that the US Marshals had forced me to abandon
all of my legal documents and copies when I was transferred from county jail to the
BOP on February 23, 2023. From April to June 2023, I attempted to obtain these
documents from the Court but as one can see from the enclosed documents that
were “Returned not filed”, the Court somehow believes that I had the power to
“maintain copies for [my own] record…
Ground Two: Ineffective counsel for failing to timely appeal the exorbitant and
disproportional restitution order.
The supporting facts are exactly as stated for Ground One.
I had timely written my counsel letters instructing him to appeal the order of
restitution and he failed to do so. Copies of these letters were provided to the court
along with the letters in support of Ground One and I believe them to be filed under
ECF No. 81. The court has refused to provide me with a copy of these letters despite
that it had been informed via Notice in March, 2023, that I had been involuntarily
divorced from my documents by the US Marshals during transport from county jail
to the BOP on 2/23/2023.
ECF No. 92, pp. 4-5.
In addition, he asserts his motion is timely and specifically states:
I am within the one year statute for my petition as this is being placed into the
prison mailbox on 6/22/2023. The date of imposition of my sentence was
6/29/2022. I would have filed this petition sooner had it not been for the fact that
the court ignored my letter in April, 2023, requesting a copy of my original §2255
2 Morris also states he filed a § 2255 with the U.S. District Court for the Western District of Arkansas, Hot Springs
Division, in December 2022 and January 2023, based on “Ineffective counsel for his failing to appeal two issues after
I had timely written him requesting him to do so. These letters were provided to the court in January 2023, in support
of my claim that he failed to appeal two issues: 01. The denial of a motion to compel the government to file a 3553(e)
as it has been withheld due to an improper motive. 02. Exorbitant and disproportional order of restitution.” ECF No.
92, pp. 2-3.
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WITH THE SUPPORTING LETTERS that I had sent the court in January, 2023,
showing that I had asked my attorney to appeal the two issues. Then when I wrote
the court again in May, 2023, requesting those ECF filed letters, the court refused
to provide them or even to offer them for a fee. (A copy of my May, 2023, letter to
the court and the court’s indifferent response is attached.)
ECF No. 92, p. 10. For his relief he asks, “To schedule hearings on the two issues raised in this
petition and to appoint counsel for defendant for these hearings.” Id. at p. 12.
The Government argues Morris’ § 2255 Motion should be denied because it is time barred
under 28 U.S.C. § 2255(f), or alternatively, the Motion should be denied on the merits because the
evidence demonstrates Hooten was not ineffective in representing Morris because Morris never
instructed Hooten to appeal the Court’s denial of his Motion to Compel or his Restitution Motion.
ECF No. 98.
3. 	Applicable Law
A § 2255 motion is fundamentally different from a direct appeal. 	The Court will not
reconsider an issue, which was decided on direct appeal, in a motion to vacate pursuant to § 2255.
See United States v. Davis, 406 F.3d 505, 511 (8th Cir. 2005); Dall v. United States, 957 F.2d 571,
572 (8th Cir.1992) (“Claims which were raised and decided on direct appeal cannot be relitigated
on a motion to vacate pursuant to 28 U.S.C. § 2255.”). “Relief under 28 U.S.C. § 2255 is reserved
for transgressions of constitutional rights and for a narrow range of injuries that could not have
been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.”
United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Motions filed under Section 2255 are
subject to a one-year statute of limitation. 28 U.S.C. § 2255(f)(1).
Under 28 U.S.C. § 2255, “[a] prisoner in custody under sentence […] claiming the right to
be released upon the ground that the sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to impose such sentence, or that the
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sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate, set aside or correct the
sentence.” 28 U.S.C. § 2255(a).
A court may grant such a motion if it finds “that the sentence imposed was not authorized
by law or otherwise open to collateral attack, or that there has been such a denial or infringement
on the constitutional rights of the prisoner as to render the judgment vulnerable to collateral
attack.” 28 U.S.C. § 2255(b). “To prove that his counsel rendered ineffective assistance in violation
of the Sixth Amendment, [Morris] must satisfy the two-prong test outlined in Strickland v.
Washington, 466 U.S. 668 (1984),” which requires a showing “his counsel’s performance was
deficient” and he was “prejudice[d]”.
4. 	Timeliness of § 2255 Motion
The Court must first determine whether Morris’ § 2255 Motion was timely filed. The one-
year statute of limitations began to run on the day Morris’ judgment of conviction became final.
The written judgment was filed on June 30, 2022 (ECF No. 69), and became final after July 14,
2022, when Morris’ time to appeal elapsed. As a result, the statute of limitations expired on July
14, 2023. The § 2255 Motion was not filed with the Court until July 18, 2023 – four days too late.
However, a § 2255 motion may be deemed to be timely filed where an inmate deposits the
motion in the prison mail system, addressed to the Court, prior to the expiration of the one-year
limitation period. See Moore v. United States, 173 F.3d 1131, 1135 (8th Cir. 1999). In addition,
Morris must submit a declaration in compliance with 28 U.S.C. § 1746, or a notarized statement,
affirming: 1) he deposited his § 2255 motion in any separate legal mail system his institution may
have; 2) the date on which he placed his motion in his institution’s mail system and 3) that first-
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class postage was prepaid at the time he did so. See U.S.C. § 2255 Proc. R. 3(d); see also, U.S. v.
Bailey, 2013 WL 5676828, 5-6 (D. Neb. Oct. 18, 2013).
Here, Morris states he placed the motion “into the prison mailbox on 6/22/2023” and it was
deposited into “the prison mailing system on June 22, 2023,” and a copy of the envelope shows
there was first-class postage affixed to the mailing. ECF No. 92, pp. 11-12, 25. Even though the
Government correctly points out that Morris did not specifically state he used any separate legal
mail system the prison had, the Court will give Morris the benefit of the doubt and find his § 2255
Motion was timely filed under the prison mailbox rule. Accordingly, the Court will address the
Motion on the merits.
5. 	Ineffective Assistance of Counsel
As previously stated, Morris contends Hooten was ineffective when he failed to appeal the
denial of his Motion to Compel, and the amount of restitution awarded to the child victims in his
case. The benchmark for judging any ineffective assistance of counsel claim must be analyzed
using the standard set forth in Strickland v. Washington, 466 U.S. 668, 686 (1984). To prove an
ineffectiveness claim under Strickland, Morris must demonstrate (1) his counsel’s performance
was so deficient so as to fall below an objective standard of reasonable competence; and (2) that
counsel’s deficient performance prejudiced the defense. 	See Toledo v. United States, 581 F.3d
678, 680 (8th Cir. 2009) (citation and quotations omitted). 	The burden of proving ineffective
assistance of counsel rests with the defendant. See United States v. White, 341 F.3d 673, 678 (8th
Cir. 2003) (citing United States v Cronic, 466 U.S. 648, 659 (1984)).
“An attorney’s failure to file a notice of appeal after being instructed to do so by his client
constitutes ineffective assistance entitling petitioner to § 2255 relief, [with] no inquiry into
prejudice or likely success on appeal being necessary.” 	See Barger v. United States, 204 F.3d
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1180, 1181-82 (8th Cir. 2000). In such cases, “prejudice is presumed because the defendant has
forfeited his right to an appellate proceeding as a result of his counsel’s error.” Watson v. United
States, 493 F.3d 960, 963-64 (8th Cir. 2007); see also Barger, 204 F.3d at 1182. However, a Section
2255 movant is only entitled to such a “presumption” of prejudice when the attorney failed to file
the notice of appeal after being instructed to do so. Id.
The analysis changes when a defendant has not made an explicit request to appeal. The
Supreme Court addressed that circumstance in Roe v. Flores-Ortega, 528 U.S. 470 (2000). The
Supreme Court held the Strickland standard applies to such cases, and the issue of whether a
counsel has “performed deficiently” is best answered by an inquiry into “whether counsel
consulted with the defendant about an appeal.” Flores-Ortega, 528 U.S. at 478. “Consult” means
that the attorney advises the defendant of the advantages and disadvantages of appealing and makes
a reasonable effort to determine the client’s wishes. Id. at 478. If counsel consults his or her client
but fails to follow the client’s instructions, the question is “easily answered.” Id.
If counsel has not consulted the client about his or her appellate rights, the analysis is more
complicated. In that situation, Flores-Ortega requires that a court determine “whether a rational
defendant would have desired an appeal or that the particular defendant sufficiently demonstrated
to counsel an interest in an appeal.” Id. at 480. If so, an attorney has a “constitutionally imposed
duty to consult with the defendant about an appeal.” Id.; see also Green v. United States, 323 F.3d
1100, 1103 (8th Cir. 2003). Flores-Ortega imposes a totality of the circumstances test, requiring
the court to “take into account all the information the attorney knew or should have known” to
decide whether there was an obligation to consult. Flores-Ortega, 528 U.S. at 480. Ultimately,
where a defendant does not explicitly instruct his attorney to appeal, and where, under the
circumstances, his attorney does not have a constitutionally imposed duty to consult the client on
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that issue, the attorney is not ineffective in failing to pursue an appeal on the client’s behalf. See
Id. at 479-80.
Although the “better practice is for counsel routinely to consult with the defendant on the
possibility of an appeal,” the Supreme Court declined to impose a bright-line test, because it would
be out of keeping with the Constitution’s “one general requirement: that counsel make objectively
reasonable choices.” Id. at 479. The Court reasoned that in certain circumstances, such as when
the sentencing court’s instructions regarding a defendant’s appeal rights are clear and informative,
or a defendant receives a sentence in line with expectations, an attorney’s failure to consult with
the client may not be objectively unreasonable. Id. at 479-80.
During the evidentiary hearing, and in his pleadings, Morris says he instructed Hooten to
appeal the denial of his Motion to Compel in letters dated June 6 and July 2, 2022. See ECF No.
81, pp. 7-11. However, the word “appeal” appears only once in the June 6 letter in its subject line,
which reads: “Motion to Compel 3553 (e) denied and appeal”. ECF No. 81, p. 7. Moreover, Morris
himself apparently did not consider the June 6 letter as directing such an appeal, because he asked
Hooten almost a month later, in the July 2 letter, “How long would I have to appeal the Motion to
Compel […]?” ECF No. 81, p. 10. Following that question, the July 2 letter makes no further
reference to appealing that issue, undercutting any suggestion that it sufficiently demonstrates
Morris’ interest in doing so. ECF No. 81, pp. 10-11.
During the June 29, 2022, sentencing hearing, the record confirms Judge Hickey advised
Morris of his appeal rights and the deadline for exercising them:
THE COURT: … Mr. Morris, I need to tell you about your appeal rights. In
paragraph nine of your plea agreement, you waived the right to a to collaterally
attack your sentence and conviction in this case except under certain circumstances,
along with your right to appeal the amount of restitution order. You did not
however, waive your right to directly appeal your sentence and conviction.
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Therefore, you have 14 days from the entry of this judgment in this case to file an
appeal.
ECF No. 103, pp. 39-40.
In addition, Hooten testified during the evidentiary hearing he spoke to Morris in person
about a possible appeal immediately after the sentencing hearing. ECF No. 114. 	Hooten also
acknowledged Morris drafted a letter to him on July 2, 2022, asking how long Morris would have
to appeal the Section 3553(e) issue, but not explicitly instructing Mr. Hooten to file an appeal. In
the same letter, Hooten agreed Morris told him he would want to appeal the restitution order if
Judge Hickey declined to reconsider it but made clear Morris did not instruct him to file an appeal.
Hooten then testified he conducted a video conference with Morris on July 6, 2022,
concerning any appeal and Morris told Hooten he did not want to appeal anything and just wanted
Judge Hickey to reconsider her restitution order. ECF No. 114. On July 14, 2022, Hooten filed a
motion to reconsider the restitution order just as Morris had instructed him to do. ECF No. 72. The
official transcript of the hearing regarding this testimony is as follows:
DIRECT EXAMINATION by Mr. Morrissey
Q and so my understanding is he [Morris] was led back into the detention facility
that’s located back there. You went and spoke to him thereafter [sentencing]?
A yes.
Q and did you hear Mr. Morris’s testimony indicating that he had discussed the
issue of appeal and his belief that he requested an appeal?
A That was his testimony…
A That’s not what happened.
Q …That was the next question I was going to ask you. So what is your recollection
of what transpired after the sentencing?
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A Well, at that particular time you’ve got to remember the framework there. By
that particular time I had after, you know, the 3553 motion and it was denied and
all of that, that was going on.
But then in order to get ready for sentencing, I reviewed the PSR, obviously,
because that’s going to come up. The I happen to notice that Andy … had a $58,000
restitution.
And I look at the other …, and was like, whoa. So then I started investigating that.
Then I got Mr. Morris, and I go, man, that seems really out of line to me.
So I got with Mr. Jones, and I wanted some paperwork where they requested it,
why they requested it and all of that. So I’m the one that raised the issue of it being
too high. I didn’t have a lot of time, and I did submit a sentencing memo just two
days, June the 27th , as I have reviewed this, for June 29th .
And to be honest with you, it wasn’t fair to the Court, and it wasn’t fair to the
prosecution because they didn’t have time…Nevertheless, when we got to court,
Judge Hickey reduce it $48,000. That was an 83 percent decrease.
Now, after …we got out of court then I did go back and talk to him, but it was
specifically about restitution because that was the issue at that point.
And I go like, she lowered it $48,00. She only got you 10,000. He was pretty
pleased with that because 83 percent is a lot.
Okay, so did he ask me? No. He did not ask me to appeal. He did not ask me to
reconsideration of anything.
Q and on that June 29 th date?
A Right.
Q And so you’ve heard his testimony that he had discussed his dissatisfaction of
the 3553(e) and result. And he communicated that to you after court, is that correct?
A No.
Q He did not communicate this.
A No.
Q dissatisfaction with that? Okay. He communicated did he communicate with you
dissatisfaction in regard to let’s say Andy’s restitution amount that was actually
ordered in court?
A No. He didn’t express he did not express dissatisfaction with it. What I went back
for was to make sure he understood that it went down $48,000, and it was only
$10,000. I wanted to make sure he understood that….
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Q I believe his testimony indicated that he is dissatisfied I that he was he understood
he had made headway, that you had made headway at sentencing, that you had
gotten reductions from what was asked.
A Okay.
Q But that he was wanting it to go further, is that correct?
A No.
Q and So when did you when did you first become aware, if you recall, that Mr.
Morris might want to appeal his sentence?
A Somewhere somewhere around in August, the first of August.
Q So I’m looking at the summary of timeline that appears on the bottom of page
two, August 2, 2022, recites that Mr. Hooten received a letter from Morris and that
he wanted to appeal this denial.
Is that your statement that that’s the first day you became aware of the desire to
appeal the decision?
A Yes.
Q And so prior to the time to that, had you and Mr. Morris had Zooms or any kind
of face-to-face interaction from the moment that he left the holding facility back
there until that August date?
A Yes.
Q And during any of those time frames, did he communicate a desire to appeal?
A. No.
Q And I believe you heard his recitation of the discussions, and I understand you
disagree with him?
A I understand.
Q But he had indicated, I guess to some degree, that you had given some legal
advice regarding the merits of an appeal Does that comport with your recollection?
A Sure. It’s always my responsibility to tell them what I believe the consequences
are. What they do with that is up to them. …
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Q Okay. And so is it your testimony that from June 29th to August 3rd , I just want
to be very specific, that you had no knowledge or belief that Mr. Morris wished to
appeal his case?
A Correct….
[Government’s timeline of events labelled Exhibit D is admitted]
CROSS EXAMINATION by Mr. Jones
…Q All right. So there’s no in-person communication at any point during that time
where he’s sat in a room and told you or got on a video call and told you, hey, I
want you to appeal the restitution order?
A No. But there was a Zoom meeting that I had with him on July the 6th.
Q Let’s talk about that for a second. Why did you set up that Zoom meeting?
A Because it’s always my practice to do that.
Q Okay.
A With every client that goes through sentencing, I usually wait about a week
because it gives them time to think about it. They can tell you no back there, but
then they may change their mind…
Q And to underline what Mr. Morrissey asked you, it’s your testimony that Mr.
Morris did not ask you to appeal anything on June 29th of 2022?
A He did not.
Q And approximately a week later, you had this video conference with him, is that
correct?
A Yes. Yes.
Q And what did you discuss during that videoconference with Mr. Morris?
A What I always do.
Q Which is?
A After its’ my practice a week after sentencing, I always call the jail where they’re
incarcerated to see if during that period of time if they had changed their mind or
not wanted me to appeal.
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Q And so did you in fact discuss the possibility of a direct appeal with Mr. Morris
on July the 6 th of ’22?
A Yes.
Q All right. And what did you advise Mr. Morris regarding his deadline for
appealing at that point.
A I don’t well, I’m not sure that I advised him of that. I jut asked him that if I can
say for sure that I told him, oh, you’ve only got this many days left.
Q Okay.
A what I did tell him was did he want me to appeal or not.
Q And what was his response to that question?
A He said no, not to appeal anything.
Q What was he interested in doing on July the 6th ?
A He might have been interested in doing a reconsideration, but I don’t even recall
that. It was just basically I’m just trying to make sure that we get within the
timeframe so we don’t come up short on filing an appeal with the 8th Circuit because
you’ve got to get that thing filed, you’ve got to do your notice of appeal and all of
that. So I always make sure I get ahead of it….
Q All right, so after July the 6th of 2022, you had the videoconference with Mr.
Morris, did you meet with Mr. Morris or talk to him by video or phone any further?
A After July the 6 th ?
Q Right.
A No.
Q All right. So thereafter, the only communications you received from Mr. Morris
or had with Mr. Morris were by mail, is that correct?
A Yes.
ECF No 114, pp. 59-73.
The record reflects Morris did draft several letters to Hooten in late July 2022, one of
which, dated July 17, 2022, contained Morris’ first instruction to Hooten to appeal the Section
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3553(e) issue. However, Morris’ testimony confirms this letter was returned to him, undelivered,
on or about July 22, 2022. In addition, Morris drafted at least two more letters to Hooten in late
July 2022, instructing him to appeal the Section 3553(e) issue. Again, Hooten testified he did not
receive any of Morris’ letters until on or about August 2, 2022:
Q All right. And there were at some point you received a letter from Mr. Morris.
You testified on or about August the 2nd , which was the first time, I think, you said
that you had heard from him that he wanted to appeal anything in the case.
A Yes.
Q Is that correct?
A Yes.
Q During that time, Mr. Morris did direct a number of letters to you, is that correct?
A Yes.
Q And I think you filed and we’ve turned a lot of these letters over to Mr. Morrissey
in preparation for today’s hearing. You file contains a good number of letters from
Mr. Morris between the time of his sentencing and August the 2nd , is that correct?
A I have at least one, two, three, three and then a fourth one on August the 9th ,
yes….
[Letters from Morris to Hooten dated July 2, July 17, July 22, and July 27, 2022,
admitted]
Q Now, Mr. Hooten, there’s no question that in a number of these letters,
particularly those on the on July the 17th , the 22 nd and the 27 th that Mr. Morris states
in those letters that he does want to appeal certain things, correct?
A Yeah, I’m pretty sure that’s what it says, yeah.
Q Right. However, prior to those letters, the letters dated June the 6th and July the
2nd , which are a part of Document 81, he never explicitly states his desire for an
appeal, is that right?
A That’s the way that I interpreted it, yes.
Q Now, on the July 2 nd letter that’s a part of Document Number 81, this was a few
days before videoconference with Mr. Morris on July 6 th .
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A Okay, yes.
Q In the July 2 nd letter, he does at least indicate some interest in an appeal, is that
correct?
A I believe that’s correct, yes. Yes.
Q However, on July the 6 th , four days after he wrote that letter, it’s your testimony
that he told you he didn’t want to appeal anything, is that correct?
A Yes.
Q Subsequently, he writes a number of letters, apparently, on the 17th , the 22nd , the
27th . Do any of those letters indicating he wanted an appeal arrive to you before
early August?...
A No….
ECF No. 114, pp. 73 – 78. Upon receiving the letters, Hooten immediately filed a motion to extend
the time for appealing the Section 3553(e) issue.
The Court finds Hooten’s testimony to be credible. Consequently, the Court finds Morris
did not specifically instruct Hooten to appeal his conviction (i.e. relating to restitution or the denial
of his motion to compel the Government to make a motion pursuant to Title 18 U.S.C. § 3553(e))
prior to the time the deadline to appeal had passed.
Moreover, the record confirms Hooten consulted with Morris at least twice regarding a
possible appeal, on June 29 and July 6, 2022. Although Morris’ July 2, 2022, letter to Hooten
discussed the possibility of appealing the restitution and Section 3553(e) issues, it did not instruct
Hooten to do so. In fact, four days later, Morris told Hooten he didn’t want to appeal anything –
he just wanted Judge Hickey to reconsider her restitution order. The Court finds Hooten’s actions
relating to any appeal in Morris’ case do not constitute ineffective assistance of counsel. Hooten
acted entirely reasonable in his representation of Morris in this case.
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6. 	Recommendation
Based on the foregoing, the Court recommends the Motion to Vacate under 28 U.S.C. §
2255 (ECF No. 92) be DENIED.
In addition, Morris has failed to make a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2). Accordingly, the Court further recommends no Certificate of
Appealability issue in this matter.
The Parties have fourteen (14) days from receipt of this 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 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. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).
DATED this 7th day of November 2024.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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