United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART MOTION TO REDUCE
SENTENCE AND DENYING MOTIONS TO EXPAND THE RECORD AND FOR
M. LAWSON United States District Judge
Antonio Walker pleaded guilty under a Rule 11 plea agreement
to possession with intent to distribute 100 grams or more of
heroin in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B) and was sentenced to the mandatory minimum
sentence of 120 months in prison. The ten-year sentence
resulted from an enhancement because of Walker's prior
felony drug conviction under the procedure set out in 21
U.S.C. § 851. He did not file a direct appeal, although
he alleges in his present motion that if his trial attorney
would have consulted with him after the sentencing hearing,
he may have done so.
present motion to vacate his sentence filed under 28 U.S.C.
§ 2255, Walker alleges that (1) his rights under the
Sixth Amendment were violated because his lawyer failed to
raise certain objection and to consult with him about whether
to appeal; (2) the indictment violates Alleyne v. United
States, 570 U.S. 99 (2013), because it does not
reference his prior felony drug convictions; (3) the Court
violated 21 U.S.C. § 851(b) by failing to ask the
petitioner about his previous convictions; and (4) the
government failed to comply with 21 U.S.C. § 851(a)(1)
because the service of the information on him was defective.
The petitioner has also filed a motion to expand the scope of
the section 2255 proceedings and for an order directing his
attorney to file an affidavit responding to the allegations
in his motion. The government has filed a response opposing
the petitioner's motion to vacate his sentence.
evidentiary hearing is not necessary to resolve the issues
raised in the motion. None of Walker's alleged grounds
entitles him to relief save one: his attorney's failure
to consult with him after sentencing about filing a notice of
appeal amounted to deficient performance in violation of the
Sixth Amendment's guarantee of counsel. And the present
record is sufficient to adjudicate that aspect of the motion
in Walker's favor. The Court will vacate the sentence,
enter a new judgment of sentence so that Walker's appeal
time will commence anew, and appoint new counsel to meet with
Walker and file a notice of appeal if instructed. The motion
will be denied in all other respects.
record (including the presentence report) establishes the
following facts. In February 2013, a cooperating witness
informed law enforcement officers in Macomb County, Michigan
that he had been buying heroin from an individual known as
“Capone” for approximately two years. Further
investigation revealed “Capone” to be petitioner
Antonio Walker. In July and August 2013, a confidential
informant made two separate purchases of heroin from Walker.
He also provided officers with the petitioner's address
and information about his vehicle.
August 12, 2013, officers conducted surveillance of Walker
and observed him engage in what appeared to be three separate
hand-to-hand drug transactions. Officers then initiated a
traffic stop of Walker and searched his person. During the
search, the officers found six plastic bags of heroin near
the petitioner's groin. Each bag had a red-lips design on
them. A short time later, officers executed a search warrant
at the petitioner's home in Warren, Michigan and located
206 grams of heroin, a scale, a ceramic cutting plate with a
razor, vinyl gloves, a box with 50 rounds of live 9 mm.
ammunition, and plastic bags featuring a red-lips design
embossed upon them.
August 27, 2013, a federal grand jury indicted the
petitioner, charging him with possession of ammunition as a
felon in violation of 18 U.S.C. § 922(g)(1); possession
with intent to distribute 206 grams of heroin in violation of
21 U.S.C. § 841(a)(1); and conspiracy to distribute
heroin in violation of 21 U.S.C. § 846. The government
also filed a notice that, if convicted, Walker was subject to
a mandatory minimum of ten years in prison under 21 U.S.C.
§§ 841(b)(1)(B)(ii)(II) and 851 because of his
prior convictions for distributing heroin and cocaine. On
November 4, 2013, Walker and his attorney (also named Walker)
acknowledged receiving a copy of his indictment, and that he
faced a mandatory minimum of ten years in prison if convicted
of possession with intent to distribute heroin.
November 5, 2013, the petitioner pleaded guilty under a Rule
11 plea agreement to possession with intent to distribute 100
grams or more of heroin in violation of 21 U.S.C. §
841(a)(1) and 21 U.S.C. § 841(b)(1)(B). Both parties
acknowledged in the agreement that Walker was subject to a
mandatory minimum sentence of 120 months in prison. The plea
agreement also contained the following waiver of appeal:
If the sentence imposed falls within the [120 month]
guideline range recommended by defendant in Paragraph 2B,
above, defendant waives any right to appeal his conviction.
Defendant retains his right to directly appeal the
Court's adverse determination of any disputed sentencing
issue that was raised at or before the sentencing hearing.
The government agrees not to appeal any sentencing within the
guideline range it has recommended in Paragraph 2B, but
retains the right to appeal any determination by the Court to
apply a lower range or to impose a sentence below the
guideline range that is unreasonable.
February 7, 2014, the parties submitted sentencing memoranda
requesting the Court to sentence the petitioner to the
mandatory minimum sentence. The Court did so on February 13,
2014, sentencing the petitioner to a prison term of 120
months. At his sentencing, the Court asked counsel for the
petitioner the following:
Court: Mr. Walker, did you go over the [pre-sentence] report
with your client?
Mr. Walker: I did, your Honor.
The Court: And did you answer all of his questions?
Mr. Walker: I believe so, your Honor.
The Court: Did you explain the guideline scoring and the
function of the statutory mandatory sentence?
Mr. Walker: Yes, your Honor.
The Court: Very well. Do you have any objections or comments?
Mr. Walker: I have no objections to the report, your Honor.
Sentencing Tr. [dkt. #48] at 4.
Court also advised the petitioner that his plea agreement
contained a waiver of some of his appeal rights:
The Court: Mr. Walker, you have a right to appeal your
conviction and sentence unless you have waived your right in
the plea agreement. There is some appeal waiver language in
the plea agreement. Discuss that with Mr. Walker and he can
advise you what appeal rights remain. If you do choose to
appeal you must prepare and file a notice of appeal within 14
days, that's two weeks [from] today, and if you do not
file your notice of appeal with the Clerk of this Court
within that time you will lose your right to appeal.
Mr. Walker, do you have any questions about the timing on
your appellate rights?
Defendant: No. Id. at 9.
petitioner did not appeal his conviction or sentence.
However, on February 11, 2015, the petitioner filed the
present motion to vacate his sentence under 28 U.S.C. §
2255, which he later moved to amend. The grounds the
petitioner alleges in his motion are summarized above. As to
the first ground (that his attorney failed to consult with
him about an appeal), the petitioner attached an affidavit,
On February 13, 2014, I was sentenced by the Honorable David
M. Lawson and at no time after my federal sentencing did my
ex-lawyer Attorney Fred Walker “consult” with me
about an appeal and it was clear from my unhappiness with my
10 year sentence as the result of the § 851 enhancement
. . . which doubled my mandatory minimum that, I expressed
[an] interest in an appeal, therefore my ex-lawyer had a
constitutional duty to “consult” with me about
filing a notice of appeal. Therefore, I swear and declare
that absent my ex-lawyer's failure to
“consult”, I would have instructed Attorney Fred
Walker to file a notice of appeal on my behalf, thus my Sixth
Amendment Rights were violated in the case at bar.
Walker Aff. [dkt. #38] ¶ 5.
5, 2015, the government filed a response to the
petitioner's motion. The government did not obtain an
affidavit from the petitioner's trial attorney, but it
did attach the following email from him to its response:
With regard to the 2255 motion I reviewed the Plea Agreement
before the entry of the guilty plea. I reviewed the
sentencing procedure and the Plea Agreement with Mr. Walker
before the sentencing. I did not speak with Mr. Walker after
the sentencing because I had to be somewhere else. I informed
Mr. Walker of this before the sentencing and let him know
that was the reason I would not be meeting with him
afterwards. He voiced no objection. Also, I spoke with his
girlfriend often during this time. There was no issue with
contacting me. If she had called me I would have answered and
if she had left me a message I would have called her back. If
she had informed me that he wanted to file an appeal I would
have done so. If he had informed me that he wanted to appeal
I would have done so. Neither of them ever informed me that
Mr. Walker wanted to file an appeal.
Gov't Resp., Ex. 1 [dkt. #55-1].
7, 2015, the petitioner filed a motion to order his trial
attorney to file an affidavit in response to his ...