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Walker v. United States

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

February 14, 2018

ANTONIO WALKER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER GRANTING IN PART MOTION TO REDUCE SENTENCE AND DENYING MOTIONS TO EXPAND THE RECORD AND FOR OTHER RELIEF

          DAVID M. LAWSON United States District Judge

         Petitioner 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.

         In his 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.

         An 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.

         I.

         The 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.

         On 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.

         On 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.

         On 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.

         On 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.

         The 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.

         The 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, which states:

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.

         On June 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].

         On July 7, 2015, the petitioner filed a motion to order his trial attorney to file an affidavit in response to his ...


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