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Garner v. United States

United States District Court, E.D. Michigan, Northern Division

November 18, 2014

CASSIAL URONE GARNER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

For United States of America, Plaintiff: Anca I. Pop, LEAD ATTORNEY, United States Attorney, Bay City, MI.

ORDER OVERRULING IN PART AND SUSTAINING IN PART OBJECTIONS, ADOPTING IN PART AND REJECTING IN PART MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, AND REFERRING THE MATTER TO MAGISTRATE JUDGE FOR APPOINTMENT OF COUNSEL AND AN EVIDENTIARY HEARING

Honorable Thomas L. Ludington, United States District Judge.

On February 21, 2013, Petitioner Cassial Urone Garner pleaded guilty to possession with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1) & (b)(1)(B)(iii). Plea Agreement, ECF No. 14. He was sentenced to 135 months' imprisonment, and he is currently incarcerated at the Morgantown Federal Correction Institution in West Virginia.

On May 27, 2014, Garner filed a motion to vacate his sentence under 28 U.S.C. § 2255. Mot. Vacate, ECF No. 20. In his motion, he asserts five grounds for relief: (1) he received ineffective assistance of counsel when his attorney failed to inform Garner of all the consequences of his guilty plea; (2) the search warrant for his residence lacked a " substantial nexus" as required by the Fourth Amendment; (3) he was denied his Sixth Amendment right to counsel during his arraignment hearing; (4) he received ineffective assistance of counsel when his attorney failed to consult with him regarding the advantages and disadvantages of filing a direct appeal; and (5) his Fifth Amendment Due Process rights were violated when he waived his right to an indictment. The Government filed a motion to dismiss on July 14, 2014. Mot. Dismiss, ECF No. 28.

On August 18, 2014, Garner filed a motion to amend his motion to vacate. Mot. Amend, ECF No. 30. In his motion to amend, Garner seeks relief on an additional ground: that his guilty plea was " too important" to be taken by a magistrate judge. Id. at 2.

On October 14, 2014, Magistrate Judge Patricia Morris issued a report and recommendation that Garner's motion to vacate be denied, that Garner's motion to amend be denied, and that the Government's motion to dismiss be granted. Rep. & Rec., ECF No. 31. On October 27, 2014, Garner filed timely objections to the report and recommendation. See Objs., ECF No. 33.

The Magistrate Judge's report and recommendation will be adopted in part and rejected in part. As explained below, Garner is not entitled to relief on his first, second, third, or fifth grounds of relief, and any amendment of his motion to vacate would be frivolous. However, Garner has raised an issue of fact regarding his fourth ground of relief (ineffective assistance of counsel for failing to consult about an appeal) that has not been addressed by the Government's response that necessitates an evidentiary hearing.

I

On February 13, 2013, Garner was charged with " knowingly and intentionally possess[ing] with intent to distribute 28 grams or more of cocaine base . . . in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B)(iii). Information 1, ECF No. 9. Garner signed a waiver of indictment, attesting that he had been " advised in open court of [his] rights and the nature of the proposed charges against [him]" on February 14, 2013. Waiver of Indictment, ECF No. 11. On February 14, 2013, the Government filed notice that Garner's penalty was subject to enhancement under 21 U.S.C. § 851 because of his prior felony drug convictions. Notice of Penalty Enhancement, ECF No. 10.

That same day, Garner consented to enter a guilty plea before Magistrate Judge Charles E. Binder. Consent, ECF No. 12 (" The defendant voluntarily consents to permit United States Magistrate Judge Charles E. Binder to conduct a plea hearing according to the procedures outlined in Rule 11 of the Federal Rule of Criminal Procedure.").

On February 21, 2013, Garner entered into a Rule 11 Plea Agreement with the United States for possession with intent to distribute. The Rule 11 Plea Agreement provided that the statutory penalties included a mandatory minimum of ten years to life in prison, supervised release of eight years to life, and a fine of up to $10, 000, 000.00. Plea Agreement 1. As part of the plea agreement, Garner waived his right to appeal and to collateral attack of his conviction and sentence:

6. APPEAL AND COLLATERAL ATTACK WAIVER
(1) If the sentence imposed does not exceed the maximum allowed by Part 3 of this agreement, defendant waives the right to appeal his conviction or sentence on any grounds. If the sentence imposed is within the guideline range determined by Paragraph 2B, the government agrees not to appeal the sentence but retains its right to appeal any sentence below that range.
(2) Defendant understands that defendants generally have the right to attack their convictions and sentences by filing post-conviction motions, petitions, or independent civil actions. As part of this agreement, however, defendant knowingly and voluntarily waives that right and agrees not to contest his conviction or sentence in any post-conviction proceedings, including-but not limited to-any proceeding under 28 U.S.C. § 2255.

Id. at 7.

In return for pleading guilty, Garner received a three-point reduction for acceptance of responsibility pursuant to the sentencing guidelines. Id. at 5. In addition, the Government agreed to refrain from bringing additional charges based on any of the conduct reflected in the sentencing worksheets. Id. at 6.[1]

Magistrate Judge Charles E. Binder conducted a plea hearing on February 21, 2013. At the plea hearing, Garner acknowledged that he was waiving his right to have his guilty plea taken by a district court judge:

Magistrate Judge Binder: You earlier signed this consent form, about ten days ago. Do you remember that?
Garner: Yes.
Magistrate Judge Binder: That form tells me that you're willing to give up your right to have this plea taken and considered by the United States District Judge and you're willing to have this plea taken and considered by me today. Is that right?
Garner: Yes.
Magistrate Judge Binder: Do you stand by the consent that you signed back ten days ago?
Garner: Yes.

Guilty Plea Tr. 3-4, ECF No. 17. Magistrate Judge Binder also went over the effect of Garner's appellate waiver:

Magistrate Judge Binder: These agreements always have a lot of big words, and there's worksheets attached and calculations and guideline application and all of that. I need to boil down a couple of the key features of this agreement to make sure you fully understand the consequences of this plea. The first has to do with an appeal.
If you are sentenced within the range that is listed in here--and that is to be between twelve and a half years and fifteen years and eight months; that is a hundred and fifty-one to a hundred and eighty-eight months--you are not going to be able to successfully appeal what happens to you, ever. Do you understand that?
Garner: Yes.
Magistrate Judge Binder: You will not be able to successfully appeal right after the sentence is handed down, and you will not be able to successfully appeal later in what's called a collateral attack, or a habeas corpus action, or a motion to vacate the sentence. None of those will be successful. Do you understand that?
Garner: Yes, sir.

Guilty Plea Tr. 17-18.

After a plea hearing, Magistrate Judge Binder issued a report recommending that Garner was competent to tender a plea, that he entered his plea knowingly and intelligently, and that the offense was supported by an independent basis in fact for each essential element. Rep. & Rec., ECF No. 15. The report further recommended that the district court accept Garner's guilty plea and that Garner be adjudged guilty. Id. at 2. The report further informed the parties that they may file objections to any portion of the report within fourteen days--but that a failure to file objections constitutes a waiver of any further right of appeal. Id. Garner did not object to the Magistrate Judge's report, and this Court adopted the report in full and accepted Garner's guilty plea. Order, ECF No. 18.

On May 23, 2013, this Court conducted Garner's sentencing hearing. During the hearing, the Court explained that the Presentence Investigation Report's Guidelines calculation modified the original Rule 11 Agreement " to the defendant's advantage . . . ." Sentencing Transcript 5-6, ECF No. 27. The PSR reflected only four criminal history points instead of seven; this modified Garner's sentence range from 151 to 188 months to 135 to 168 months. Id. at 6. The Government did not challenge the new scoring. Id. After reviewing the Rule 11 appeal waiver with Garner, the Court informed Garner that even if there were issues not covered by the appeal waiver, he would still have to initiate the appeal by filing it within fourteen days. The Court then sentenced Garner to 135 month's imprisonment. J. 2, ECF No. 19.

Garner did not file a direct appeal. On May 27, 2014, Garner filed the instant motion to vacate pursuant to § 2255, collaterally attacking his conviction and sentence.

II

On October 14, 2014, Magistrate Judge Morris issued a report recommending that Garner's motion to vacate be denied and that his motion to amend be denied. Garner timely filed objections to Magistrate Judge Morris's report.

Objections to a report and recommendation are reviewed de novo . " A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1).

III

Garner makes four objections to the Magistrate Judge's report. First, Garner asserts that the Magistrate Judge erroneously recommended that his motion to amend be denied. Second, Garner asserts that his plea was not made knowingly, intelligently, and voluntarily. Third, because his plea was not made knowingly, intelligently, and voluntarily, he has not waived his right to appeal or collaterally attack his sentence and conviction. Lastly, Garner contends that Magistrate Judge erred in concluded that he had waived his ineffective assistance of counsel claim for failure to consult.

A

Garner first objects to the Magistrate Judge's recommendation that his motion to amend be denied. In his motion to amend, Garner had requested permission to amend his § 2255 motion to include an argument that his guilty plea was too important to be taken by the Magistrate Judge. In support of this argument, Garner cited United States v. Harden, 758 F.3d 886 (7th Cir. 2014), a Seventh Circuit case decided in July 2014.

In Harden, the Seventh Circuit determined that, under the Federal Magistrates Act 28 U.S.C. § 636, magistrate judges are " not permitted to accept guilty pleas in felony cases and adjudge a defendant guilty." Id. at 888-91 (emphasis added). In that case, the magistrate judge had not issued a report recommending that the district court judge accept the guilty plea; instead, the magistrate judge accepted Harden's felony guilty plea.

Magistrate Judge Morris distinguished the facts in Harden from the instant case. Magistrate Judge Morris noted that " [i]n that case the magistrate judge accepted [Harden]'s felony plea instead of preparing a report and recommendation." Rep. & Rec. 8. In contrast, with respect to Garner's plea, " Judge Binder prepared a report and recommendation which was adopted by Judge Ludington." Id. Magistrate Judge Morris therefore concluded that " not only is the Seventh Circuit case not binding on this Court, but the facts of the case are inapposite." Id.

As Magistrate Judge Morris explained, Harden does not provide Garner with grounds for relief. Although Garner pleaded guilty at a hearing before a magistrate judge--that he expressly consented to--Magistrate Judge Binder issued a report recommending that the district court accept the guilty plea. This Court then had an opportunity to consider--and accept or reject--the recommendation. This Court ultimately accepted Garner's guilty plea, sentenced him, and entered a judgment. Nothing in Harden questions this methodology.[2]

In his objections, Garner appears to abandon his previous position that a magistrate judge may not take his guilty plea. Instead, he contends that " this Court never accepted Movant Garner's guilty plea as to Count One of the Information in open court and never adjudicated Mr. Garner guilty in open court as required pursuant to the Fed. R. of Crim. P. 11(b)(1)-(2)." Obj. 2-3 (emphasis original). Instead of accepting his guilty plea in open court, Garner claims that this Court improperly accepted the guilty plea by written Order. See Order Accepting Guilty Plea, ECF No. 18. Thus, Garner continues, he should be allowed to amend this 2255 motion to include this argument.

Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend " shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). As the Supreme Court has stated, " [i]n the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be 'freely given.'" Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (emphasis added). Nevertheless, there are certain situations in which it is appropriate to deny leave to amend. One such circumstance is when amendment would be " futil[e]." Foman, at 182; Moss v. United States, 323 F.3d 445, 476 (6th Cir. 2003). Amendment is futile when the proposed amendment is subject to dismissal under Rule 12(b)(6), that is, when the proposed amendment fails to state a claim upon which relief may be granted. See Parry v. Mohawk Motors of Mich., Inc . 236 F.3d 299, 307 (6th Cir. 2000).

Here, Garner's proposed amendment of his motion to vacate would be futile. As noted above, with respect to his first argument--that a magistrate judge could not take his guilty plea--Magistrate Judge Morris properly concluded that this argument was futile.[3]

Likewise, adding the argument set forth in his objections--that this Court never accepted his guilty plea in " open court" --would also be futile. The acceptance of Garner's guilty plea complied with Federal Rule of Criminal Procedure 11 in all respects. Rule 11(b) states that " [b]efore the court accepts a plea of guilty . . . the court must address the defendant personally in open court." The purpose of this rule is " to assist the district court in determining whether a defendant's guilty plea is truly voluntary and to produce a complete record of the factors relevant to this determination." United States v. Gardner, 417 F.3d 541, 544 (6th Cir. 2005) (citing McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)).

On February 21, 2013, Magistrate Judge Binder conducted a hearing in open court during which Garner pleaded guilty to possession with intent to distribute cocaine base. During the hearing, Magistrate Judge Binder concluded that " the defendant's plea is knowingly and intelligently made and made after consultation with counsel." Guilty Plea Tr. 23. Magistrate Judge Binder then stated that he would " recommend that the defendant's plea be accepted, that the defendant be adjudged guilty and have sentence imposed subject to Judge Ludington's final review and consideration of the plea agreement under Rule 11(c) of the Rules of Criminal Procedure." Id. at 23. Furthermore, Garner's counsel stated that he was satisfied with Magistrate Judge Binder's compliance with Federal Rule of Criminal Procedure 11:

Magistrate Judge: Ms. Pop, are you satisfied with my compliance with Rule 11?
AUSA: Yes, your Honor.
Magistrate Judge: Mr. Day, are you satisfied?
Defense Counsel: Yes, your Honor.

Id. at 24.

Magistrate Judge Binder then issued a report to this Court recommending that Garner's guilty plea be accepted. Garner did not file an objection to this report, and therefore this Court adopted the report and accepted the guilty plea by written order on March 28, 2013.[4] Order Accepting Guilty Plea 2 (" It is further ORDERED that the defendant's guilty pleas as to the sole count of the information is ACCEPTED, and the Rule 11 Plea Agreement (ECF No. 14) is taken UNDER ADVISEMENT .") (emphasis original).

Thus, Federal Rule of Criminal Procedure 11(b) was satisfied by Garner's plea in open court in front of Magistrate Judge Binder; there is no requirement that the district court conduct a separate hearing to allow Garner to plead guilty to the same charge again. See United States v. Grant, 2014 WL 4828469, at *1 (S.D.N.Y. Sept. 25, 2014) (plea hearing before magistrate judge " complied in all material respects with the requirements of Rule 11 of the Federal Rules of Criminal Procedure.").

The arguments Garner seeks to advance in his amended motion would be futile, and therefore Rule 15 does not require that Garner's motion to amend be granted. Accordingly, Garner's first objection is overruled.

B

Garner next objects to the Magistrate Judge Morris's conclusion that his guilty plea was made voluntarily and intelligently. He contends that he was " mis-informed about the direct consequences of his guilty plea, " such as the correct statutory maximum, the correct mandatory minimum, and the correct term of supervised release. Objs. 4. Specifically, Garner claims that the mandatory minimum for possession with intent to distribute is 5 years with a statutory maximum of 40 years. However, Garner claims, he was incorrectly informed that the mandatory minimum was 10 years and the statutory maximum was life. Id. Had he known that he faced a maximum of only 40 years--rather than life--he contends that he would not have accepted the plea agreement.

Contrary to Garner's assertions, he was correctly informed of the mandatory minimum and statutory maximum associated with the charged offense of possession with intent to distribute, 21 U.S.C. § 841(b). In particular, 21 U.S.C. § 841(b)(1)(B) provides that if " any person commits [a violation of 21 U.S.C. § 841(b)(1)(B)] after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment ." (emphasis added). Garner had previously been convicted of four felony drug offenses prior to the charged offense, and the Government properly filed a notice of penalty enhancement. See Notice of Penalty Enhancement. Moreover, Magistrate Judge Binder correctly described Garner's possible sentence accurately during the plea hearing: " The charge is a felony. It has penalties of at least ten years' imprisonment, with as much as life imprisonment . . . ." Guilty Plea Tr. at 5 (emphasis added).

Garner was properly advised that he faced a mandatory minimum of 10 years' imprisonment with a maximum of life imprisonment. Therefore, to the extent that he argues that his plea was not intelligently or knowingly made, his second objection will be overruled.

C

Garner's next objection is related to his second objection: he contends that the Magistrate Judge's recommendation erred by concluding that he had waived his Fourth Amendment argument (Ground Two), his claim that he was entitled to counsel during the arraignment (Ground Three), and his claim that his due process rights were violated when he waived his right to an indictment (Ground Five). Magistrate Judge Morris concluded that, because Garner had intelligently and knowingly entered into a plea agreement, Garner had waived these arguments. Rep. & Rec. 10 (" Consequently, it follows that Petitioner's arguments regarding the validity of the search warrant, his Sixth Amendment right to counsel during arraignment, and his waiver of his right to indictment have also been waived.") (citations omitted).

As noted earlier, Garner's Rule 11 agreement contained an appeal and collateral attack waiver which provides in part:

(2) Defendant understands that defendants generally have the right to attack their convictions and sentences by filing post-conviction motions, petitions, or independent civil actions. As part of this agreement, however, defendant knowingly and voluntarily waives that right and agrees not to contest his conviction or sentence in any post-conviction proceedings, including-but not limited to-any proceedings under 28 U.S.C. § 2255.

Plea Agreement 7. The Sixth Circuit has held that this type of collateral attack waiver is enforceable. See Davila v. United States, 258 F.3d 448, 450 (6th Cir. 2001) (" This Circuit has held that plea-agreement waivers of § 2255 rights are generally enforceable . . . .").

Garner knowingly, intelligently, and voluntarily entered into a Rule 11 agreement that contained a collateral attack waiver. He therefore has waived the right to contest his conviction or sentence in any proceedings under 28 U.S.C. § 2255. Accordingly, Garner's fourth objection will be overruled because he has waived his right of collateral attack.[5]

D

Garner's final objection concerns Magistrate Judge Morris's conclusion that his collateral attack waiver also waived his ineffective assistance of counsel for failure to consult claim. In his § 2255 motion, Garner contends that he received ineffective assistance when his attorney failed to " consult" with him regarding the advantages and disadvantages of filing a direct appeal to the Sixth Circuit. Had he been informed of the advantages, Garner continues, he would have filed a direct appeal.

In the report, Magistrate Judge Morris recommends denying Garner's ineffective assistance of counsel claim because he waived the claim through his plea agreement's collateral attack waiver. Rep. & Rec. 10. However, Magistrate Judge Morris also notes that the Sixth Circuit recently held that, when a defendant explicitly asks counsel to appeal and counsel does not appeal, the defendant may still bring an ineffective assistance of counsel claim despite the existence of a collateral attack waiver. Id. (citing Hamilton v. United States, 566 F.App'x 440, 443 (6th Cir. 2014)) (holding that " the collateral-attack waiver is no bar to the ineffective assistance claim presented in Hamilton's § 2255 motion . . . .").

In his Rule 11 Agreement, Garner waived his right to appeal, both on direct appeal and through a collateral attack:

(1) If the sentence imposed does not exceed the maximum allowed by Part 3 of this agreement, defendant waives the right to appeal his conviction or sentence on any grounds. If the sentence imposed is within the guideline range determined by Paragraph 2B, the government agrees not to appeal the sentence but retains its right to appeal any sentence below that range.
(2) Defendant understands that defendants generally have the right to attack their convictions and sentences by filing post-conviction motions, petitions, or independent civil actions. As part of this agreement, however, defendant knowingly and voluntarily waives that right and agrees not to contest his conviction or sentence in any post-conviction proceedings, including-but not limited to-any proceedings under 28 U.S.C. § 2255.

Plea Agreement 7.

But Garner's ineffective assistance of counsel claim is an example of a claim that is not waived by an appeal waiver in a plea agreement. The Sixth Circuit has clarified that an ineffective assistance of counsel claim premised on counsel's alleged failure to file an appeal is not waived by a Rule 11 Agreement:

[E]ven though a defendant clearly is entitled to waive the right to an appeal by executing a plea agreement, even the broadest waiver does not absolutely foreclose some degree of appellate review . To the contrary, our cases have repeatedly recognized that a waiver of appeal rights can be challenged on various--albeit narrow--grounds . . . .

Campbell v. United States, 686 F.3d 353, 358 (6th Cir. 2012) (emphasis added).

Indeed, the Sixth Circuit has addressed the specific situation here:

In Wright, this court extended the principles set out in Ludwig and Flores-Ortega to a case that, like this one, involved a plea agreement that contained a broad waiver of the right to appeal the defendant's conviction and sentence. Despite the waiver, however, we determined that, if counsel had ignored the defendant's express instruction to file an appeal, such action " amounts to a per se violation of the Sixth Amendment, " and thus " regardless of the merits of the defendant's substantive claims, " he would be entitled to relief under § 2255 if the district court on remand determined that there was " an actual request for an appeal."

Campbell, 686 F.3d at 360 (quoting Wright v. United States, 320 F.App'x 421 (6th Cir. 2009) (internal citation marks omitted).

Here, Garner's situation is analogous to the situation in Wright . Garner pleaded guilty and signed a broad waiver of his right to appeal, both on direct appeal and through a collateral attack. However, if Garner requested that his attorney file an appeal, or if he expressed a desire to appeal, then Garner's appeal waiver does not bar his ineffective assistance claim. Here, as noted below, it is unclear if Garner actually directed his attorney to file an appeal or whether he expressed interest in appealing. Regardless, either of these statements is sufficient to overcome the appeal waiver. Therefore, Garner's objection will be sustained and Magistrate Judge Morris's recommendation that Garner's appeal waiver bars his ineffective assistance claim will be rejected.

i

Because Garner did not waive his ineffective assistance of counsel claim, the merits of his claim will be addressed.[6] Pursuant to 28 U.S.C. § 2255, a federal prisoner " 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 . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence." 28 U.S.C. § 2255(a). Thus, a defendant may be entitled to § 2255 relief if his conviction or sentence violates either the Constitution or a federal statute.

As noted above, Garner asserts that he received ineffective assistance of counsel when his attorney--at the least--failed to consult with him about a direct appeal. The Sixth Amendment right to counsel and the right to effective assistance of counsel protect the fundamental right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish the ineffective assistance of counsel, petitioner must show that: (1) counsel's errors were so serious that " counsel was not functioning as 'counsel' guaranteed the defendant by the Sixth Amendment; " and (2) counsel's deficient performance prejudiced the defense." Id. at 687.

a

When a defendant claims that counsel failed to file an appeal, the performance inquiry depends both on what the defendant told counsel and on the circumstances of the case. In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the Supreme Court identified two situations in which an attorney's failure to file an appeal may constitute ineffective assistance of counsel. First, the Supreme Court explained that " a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Id. at 477. Thus, if Garner instructed his attorney to file an appeal and counsel did not do so, then his attorney's conduct was unreasonable.

Second, in cases where " the defendant has not clearly conveyed his wishes one way or the other, " id . at 477, counsel has a constitutionally-imposed duty to consult with a defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal, or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. Id. at 480. In determining whether there was a duty to consult, the most important factor is whether the defendant's conviction follows a trial or a guilty plea; a guilty plea reduces the scope of potentially appealable issues and such a plea may indicate that defendant seeks to end judicial proceedings. Id. But even in cases where the defendant pleaded guilty, a court must consider other relevant factors, such as (1) " whether the defendant received the sentence bargained for as part of the plea" and (2) " whether the plea expressly reserved or waived some or all appeal rights." Id.

From Garner's motion to vacate, it is unclear whether Garner indicated his desire to appeal to his attorney given the contradictory statements Garner makes. First, Garner states that " he expressed an [sic] desire to appeal . . . ." Mot. Vacate 14. Thus, if Garner did request that his attorney file an appeal, his attorney was constitutionally-ineffective for failing to do so.

However, Garner also argues that his attorney had a duty to consult with him regarding the advantages and disadvantages of filing an appeal--suggesting that Garner did not direct his attorney to file an appeal. But even if this is the case, Garner is nonetheless entitled to an evidentiary hearing on the issue. Although the Magistrate Judge concluded that " this is not a case where 'a rational defendant would want to appeal, '" Rep. & Rec. 13, Garner may have " reasonably demonstrated to counsel that he was interested in appealing, " Roe, 528 U.S. at 480. In an " affidavit" attached to his objections, Garner asserts that he was upset after sentencing:

[M]y reaction to the " extra" one year upset me but because my attorney never " consulted" with me after sentencing, I was confused and had no idea that, I could still file an appeal in light of me waiving my appellate rights, absent my ex-lawyer's failure to " consult" with me, I would have instructed him to file a notice of appeal on my behalf.[ sic throughout]

Aff. 11-12, attached to Objs. (emphasis original).[7] This affidavit, combined with Garner's statement that " he expressed a[] desire to appeal, " is sufficient to show that he may have reasonably indicated to his attorney that he was interested in appealing.

As noted above, it is unclear whether Garner told his attorney to file an appeal, or whether Garner had not conveyed an intention one way or the other because of counsel's failure to consult. However, if either is true, then Garner may have established the Strickland 's performance requirement.

b

The Government does not provide any evidence to contradict Garner's assertions. Instead, in its motion to dismiss, the Government asserted that Garner had waived any direct appeal and had waived his collateral attack rights:

Beyond Argument One, defendant's remaining allegations do not relate to the validity of his guilty plea, plea agreement, and appeal and collateral attack waiver. Because defendant knowingly, intelligently and voluntarily waived his right to file the instant motion to vacate, his motion should be dismissed.

Mot. Dismiss at 10.

There is the implication that a direct appeal would have been frivolous, and therefore there was no obligation for defense counsel to counsel with Garner about an appeal.[8] However, " even where an appeal appears frivolous, an attorney's obligations to his or her client do not end at the moment the guilty plea is entered." Campbell, 686 F.3d at 358; see also Carrion v. United States, 107 F.App'x 545, 546 (6th Cir. 2004) (" Carrion's likelihood of success on appeal is not a factor in determining whether he received ineffective assistance of counsel."); see Schnepp v. United States, 2007 WL 2984198, at *1 (W.D. Mich. Oct. 12, 2007) (even where petitioner had waived his right to appeal in a plea agreement, petitioner's counsel could still be constitutionally ineffective for failing to file a direct appeal if counsel ignored petitioner's direct order to file an appeal). Indeed, the Sixth Circuit emphasized that Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), governs the circumstances where a defendant directs his attorney to file a frivolous appeal. 686 F.3d at 358.

c

Of course, under Strickland, Garner must also show that his counsel's ineffective performance prejudiced him. Moreover, if a court concludes that a petitioner has not suffered Strickland prejudice, it need not address whether petitioner's counsel was ineffective. See Mallett v. United States, 334 F.3d 491, 497 (6th Cir. 2003) (" If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.") (citing Strickland, 466 U.S. at 697).

Here, Garner asserts that, had counsel consulted with him, he " would have filed a timely notice of appeal, " and would have been able to raise his " three meritorious arguments" on direct appeal. Mot. Vacate 7, 9. As noted in footnote 7, this statement is, apparently, enough to establish Strickland prejudice--even though neither Garner nor this Court can identify any nonfrivolous issues that could be raised on appeal.[9] See Campbell, 686 F.3d at 360 (" We therefore hold that even when a defendant waives all or most of his right to appeal, an attorney who fails to file an appeal that a criminal defendant explicitly requests has, as a matter of law, provided ineffective assistance of counsel . . . ."); United States v. Magiera, 2014 WL 5364799, at *4 (E.D. Ky. Oct. 21, 2014) (" Campbell indeed stands for the proposition that it is per se ineffective assistance of counsel to fail to file a requested appeal, even if a defendant has waived his appellate rights.") (emphasis added). This Court is, reluctantly, bound by Sixth Circuit precedent, and it cannot deny Garner's motion to vacate for failure to show Strickland prejudice.

The Government does not contradict Garner's assertion, nor does any evidence in the record contradict his assertion that he would have filed a direct appeal. Accordingly, this Court cannot dismiss Garner's ineffective assistance of counsel claim because Garner has made a sufficient showing that he suffered prejudice from counsel's alleged ineffectiveness.

ii

Under § 2255, a " hearing is mandatory 'unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" Smith v. United States, 348 F.3d 545, 550 (6th Cir. 2003) (quoting Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973)). Unlike a habeas petition challenging a state conviction under § 2254, with respect to which there are significant barriers to receiving an evidentiary hearing, see 28 U.S.C. § 2254(e), " a Section 2255 petitioner's burden 'for establishing entitlement to an evidentiary hearing is relatively light.'" Smith, 348 F.3d at 551 (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). In particular, " where the ultimate resolution rests on a credibility determination, an evidentiary hearing is especially warranted." United States v. White, 366 F.3d 291, 302 (4th Cir. 2004).

Here, Garner argues that--at the very least--his attorney did not consult with him regarding the advantages and disadvantages of filing an appeal. The Government has not offered any evidence to contradict this argument, [10] nor does a review of the record indicate anything that would contradict the argument.[11] Under these circumstances, Garner has satisfied the " relatively light" burden he bears in establishing entitlement to an evidentiary hearing. See Valentine v. United States, 488 F.3d 325, 333-334 (6th Cir. 2007) (finding that the district court erred in declining to hold a hearing where defendant had presented an affidavit, the government offered nothing to contradict it, and the claim was not " inherently incredible" nor contradicted by the record); see also Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) (even where a Petitioner-Appellant simply makes an un-contradicted assertion that his counsel refused to file an appeal at his direction, an evidentiary hearing is warranted).

Because Garner is entitled to an evidentiary hearing, the Court must appoint counsel to represent defendant at the evidentiary hearing. See Rule 8(c), Rules Governing Section 2255 Proceedings for the United States District Courts, 28 U.S.C. foll. § 2255. Further, the Court may conduct the hearing itself or refer the matter to a magistrate judge for that purpose. See Rule 8(b), 28 U.S.C. foll. § 2255. Moreover, because Garner is incarcerated in West Virginia, the Court may ask the parties to arrange for Garner's appearance via video conference. See United States v. Jones, 2011 WL 5075672, at *6 (E.D. Mich. May 9, 2011) (collecting cases).[12]

IV

Accordingly, it is ORDERED that Garner's objections are OVERRULED IN PART AND SUSTAINED IN PART.

It is ORDERED that the United States Magistrate Judge's Report and Recommendation (ECF No. 31) is ADOPTED IN PART AND REJECTED IN PART. The Court ADOPTS the recommendation that Garner's first, second, third, and fifth claims for relief be denied. The Court also ADOPTS the recommendation that Garner's motion to amend be denied.

It is further ORDERED that this matter is REFERRED to United States Magistrate Judge Patricia Morris for appointment of counsel from the Federal Defender's Office or from the approved list of Criminal Justice Act attorneys.

It is further ORDERED that matter is REFERRED to United States Magistrate Judge Patricia Morris to conduct an evidentiary hearing on Garner's fourth claim for relief--that he received ineffective assistance of counsel when counsel failed to consult with him regarding the advantages and disadvantages of appealing.

It is further ORDERED that Garner's motion to amend (ECF No. 30) is DENIED.


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