USA v. Eckles et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:07CV133-1-V
5:05CR9-29-V
ALVIS MOSLEY, 	)
)
Petitioner, 	)
)
vs. 	) 	O R D E R
)
UNITED STATES OF AMERICA, 	)
)
Respondent. 	)
____________________________________)
THIS MATTER comes before the Court on Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. No. 1), filed December 4, 2007; Respondent’s
Motion for Summary Judgment (Doc. No. 5), filed February 8, 2008; and Petitioner’s Reply to
Government’s Response to § 2255 Motion (Doc. No. 8), filed March 12, 2008.
After having carefully reviewed the instant Motion to Vacate, Motion for Summary
Judgment, and the Reply, as well as certain other pertinent documents from the Petitioner’s criminal
case, and relevant legal precedent, the Court concludes, out of an abundance of caution, that the
Petitioner’s Motion to Vacate should be granted, but only for the purpose of allowing him to pursue
a direct appeal of his conviction and/or sentence in his underlying criminal case.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 29, 2005, Petitioner was one of thirty-four individuals named in a Superceding Bill
of Indictment. Count One of the Superceding Indictment charged Petitioner with conspiracy to
Case 5:05-cr-00009-MEO-DCK Document 1269 Filed 10/28/09 Page 1 of 6

2
possess with intent to distribute greater than 50 grams of cocaine base, greater than 5 kilograms of
cocaine, and greater than 1000 kilograms of marijuana in violation of 21 U.S.C. § 846. 	The
Superceding Indictment also charged Petitioner with possession with intent to distribute greater than
500 grams of cocaine in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 and possession with intent
to distribute marijuana in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. On February 16, 2006,
the parties filed an Amended Plea Agreement. On March 1, 2006, Petitioner entered a guilty plea
to Count One at his Rule 11 hearing. On December 18, 2006, after granting the Government’s
Motion for a Downward Departure, this Court sentenced Petitioner to 120 months imprisonment.
Petitioner did not appeal his sentence or conviction.
On December 4, 2007, Petitioner timely filed the instant Motion to Vacate alleging, among
other things, that he was subjected to ineffective assistance by virtue of trial counsel’s failure to
consult with him concerning the possibility of a direct appeal.
II. ANALYSIS
The Petitioner’s claim that counsel failed to consult with him regarding an appeal is
controlled by the Supreme Court’s decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000). In Roe,
the United States Supreme Court held that in the absence of a direct request to appeal, the question
of whether counsel’s failure to appeal was constitutionally deficient depends upon “whether counsel
in fact consulted with the defendant about an appeal.” 	528 U.S. at 478. 	In order to satisfy the
constitutional requirement of “consulting,” defense counsel must advise the defendant about the
advantages and disadvantages of taking an appeal and make a reasonable effort to discover the
defendant’s wishes. Id. 	If counsel consults with a defendant, counsel’s performance is deficient
only if he fails to follow a defendant’s express instructions to file an appeal. Id. If counsel has not
Case 5:05-cr-00009-MEO-DCK Document 1269 Filed 10/28/09 Page 2 of 6

3
consulted with the defendant, a court must then determine if the failure to consult itself constitutes
deficient performance. 	Not every failure to consult results in a constitutionally deficient
performance. Id. at 479. Counsel only has a constitutionally imposed duty to consult where there
is reason to think that a rational defendant would want to appeal or where a defendant has reasonably
demonstrated to counsel that he was interested in appealing. Id. at 480. (Emphasis added). The
Supreme Court has cautioned that “[w]e expect that courts evaluating the reasonableness of
counsel’s performance using the inquiry we have described, will find, in the majority of cases, that
counsel had a duty to consult with the defendant about an appeal.” Id. at 481. If a court determines
that counsel’s performance was deficient for failing to consult, a court must then determine whether
counsel’s deficient performance prejudiced the defendant. Id. at 481. In order 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.
In the instant case, the Petitioner has alleged that although he did not specifically direct his
counsel to file an appeal on his behalf, after sentencing he asked counsel “[w]hat about an appeal?”
Petitioner alleges that his counsel replied that there was nothing to appeal but that he would come
talk to Petitioner about it. According to Petitioner, counsel never followed up with him. Based upon
Petitioner’s allegations, counsel never fully consulted with him in that he never advised Petitioner
of the advantages and disadvantages of an appeal and never made “a reasonable effort to discover
[his] wishes.” Moreover, based upon Petitioner’s inquiry regarding an appeal, it appears that he
reasonably demonstrated to counsel that he was interested in appealing. Finally, Petitioner attaches
to his Motion to Vacate a pro se Notice of Appeal which he alleges that, because counsel never came
to discuss an appeal with him, he mailed to this Court on December 28, 2006. Petitioner asserts in
Case 5:05-cr-00009-MEO-DCK Document 1269 Filed 10/28/09 Page 3 of 6

Respondent obviously had not seen a copy of the envelope mailed to this Court on1
December 28, 2006, prior to filing the Motion for Summary Judgment.
4
his response to the Government’s Motion for Summary Judgment, that the Notice of Appeal was
never filed because it was returned to him as undeliverable in January 2007. 	In support of this
contention, Petitioner attaches a copy of an envelope addressed to this Court; postmarked December
28, 2006; and marked by the post office as not deliverable as addressed. Petitioner’s attempt to file
a Notice of Appeal, in conjunction with Petitioner’s alleged prompt expression of a desire to discuss
the option of appealing, supports a finding of prejudice.
Respondent responds to Petitioner’s Roe allegation by submitting an affidavit by Petitioner’s
criminal defense counsel stating that he and Petitioner discussed the possibility of an appeal and that
Petitioner indicated that he did not want to file an appeal. A factual dispute thus exists over whether
or not Petitioner and his counsel fully consulted and over whether or not Petitioner indicated an
interest in appealing. 	In addition, Respondent questions the validity of the Notice of Appeal
submitted by Petitioner. 1
In accordance with this Court’s practice, and out of an abundance of caution, the Court has
determined that Petitioner’s Motion to Vacate should be granted, but only for the purpose of
allowing him to pursue a direct appeal of his conviction and/or sentence in his underlying criminal
case. 	Thus, the Court will vacate its Judgment so that the Petitioner may appeal his conviction
and/or sentence.
III. NOTICE OF APPELLATE RIGHTS
Mr. Mosley, you are hereby advised that you have an absolute right to appeal your criminal
case and any issues in it to the Fourth Circuit Court of Appeals. If you decide to do that, you will
Case 5:05-cr-00009-MEO-DCK Document 1269 Filed 10/28/09 Page 4 of 6

5
have to file a Notice of Appeal with the Clerk of this District Court within 10 days after the day your
new Judgment of conviction is filed with this Court, or within 10 days after any Government appeal
is filed with this Court, whichever day comes later. The Clerk will assist you in preparing your
Notice of Appeal if you so request.
If you previously were determined to be indigent in connection with your criminal case, or
if you now are indigent and are unable to pay for an appeal, you may request permission to proceed
on appeal without prepayment of the applicable filing fees. 	You should discuss the question of
appeal with your attorney, if you have one, but whatever he or she may tell you, the responsibility
for filing the Notice of Appeal remains with you, and you must file such Notice within the
aforementioned 10- day period in order to make it effective.
IV. ORDER
NOW THEREFORE, IT IS HEREBY ORDERED:
1. That the Petitioner’s Motion to Vacate is GRANTED in part and DENIED in part;
2. All of Petitioner’s claims except for his ineffective assistance of counsel claim based upon
his attorney’s failure to consult with him regarding an appeal are DISMISSED WITHOUT
PREJUDICE;
2. That the Petitioner’s original Judgment is VACATED due to counsel’s failure to consult
with him regarding an appeal;
3. That the Clerk is directed to prepare a new Judgment for the Petitioner, imposing the same
sentence and conditions as were imposed by the original Judgment form;
4. That the Petitioner may appeal from his new Judgment as has been explained in this
Order; and
Case 5:05-cr-00009-MEO-DCK Document 1269 Filed 10/28/09 Page 5 of 6

6
5. That the Clerk shall send copies of this Order to the Petitioner and to the United States
Attorney for the Western District of North Carolina.
Signed: October 23, 2009
Case 5:05-cr-00009-MEO-DCK Document 1269 Filed 10/28/09 Page 6 of 6