United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD, Magistrate Judge.
This case comes before the undersigned United States Magistrate Judge for a recommendation as to Ground One of Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 ("Section 2255 Motion") (Docket Entry 61). For the reasons that follow, the Court should deny relief.
This Court (per United States District Judge Catherine C. Eagles) entered a Judgment against Petitioner imposing, inter alia, a prison term of 96 months, upon his guilty plea to conspiracy to distribute five kilograms or more of cocaine hydrochloride in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). (Docket Entry 45); see also Docket Entry 1 (Indictment); Docket Entry 34 (Plea Agreement); Docket Entry dated May 7, 2013 (documenting guilty plea); Docket Entry dated Aug. 29, 2013 (documenting sentencing); Docket Entry 69 (Plea Hrg. Tr.).) Petitioner did not give notice of appeal. (See Docket Entries dated Aug. 29, 2013, to present.) He did, however, timely file his instant Section 2255 Motion (Docket Entry 61), followed shortly by a Memorandum of Law in Support (Docket Entry 69), with accompanying affidavit (id. at 10-11). The United States responded (Docket Entry 71), attaching an affidavit from Ronald Lowy (one of Petitioner's attorneys in his underlying criminal case) (Docket Entry 71-1; see also Docket Entry 23 at 1 (documenting "notice of appearance [by Robert O'Hale of Clifford Clendenin & O'Hale, LLP] as attorney of record for [Petitioner] in [his underlying criminal case]" and stating that Mr. O'Hale "anticipate[d] that he w[ould] act as local counsel, and Ron Lowy from Florida w[ould] act as lead counsel"); Docket Entry 31 at 1 (documenting notice of special appearance (pursuant to Local Rule 83.1(d), as incorporated by Local Criminal Rule 57.1) of "Ronald S. Lowy, Esquire, of Lowy and Cook, P.A." in Petitioner's underlying criminal case). Petitioner replied. (Docket Entry 74.)
The undersigned Magistrate Judge thereafter entered a Text Recommendation proposing that the Court deny relief on Grounds Two through Six of Petitioner's Section 2255 Motion, but defer adjudication of Ground One of his Section 2255 Motion, pending an evidentiary hearing. (See Text Recommendation dated Dec. 22, 2014; see also Docket Entry 80 (appointing Benjamin Porter as counsel for Petitioner in connection with Ground One).) That hearing now has occurred. (See Docket Entry dated Apr. 15, 2015; Docket Entry 85 (Ground One Hrg. Tr.).) Based on the evidence presented at that hearing and other relevant record material, the Court should deny relief on Ground One.
In Ground One, Petitioner averred as follows:
Counsel provided ineffective assistance when counsel was requested by [Petitioner] to file a notice of appeal as agreed after sentencing. Counsel provided ineffective assistance when he prevented [Petitioner] from presenting meritotious [sic] defenses. [Petitioner] was denied his fundamental right to effective assistance of counsel by counsels [sic] failure to have sought appellate review.
(Docket Entry 61, ¶ 12(Ground One)(a); see also id., ¶ 11(d) ("Counsel failed to file Notice of Appeal when requested to do so."); id., ¶ 12 (Ground One)(b)(2) ("Counsel failed to file notice of appeal when requested to do so."); id., ¶ 15 (identifying counsel in underlying criminal case as "Lowy and Cook, P.A."); id. at 13 (signing Section 2255 Motion under penalty of perjury).)
Petitioner's Memorandum of Law in Support of his Section 2255 Motion (which he signed, although not under penalty of perjury (see Docket Entry 69 at 9)) states, in pertinent part, that:
1) "Petitioner was represented by Lowy and Cook, P.A., ... by both attorney's [sic], Ronald Lowy and Robert O'Hale" (id., ¶ 3);
2) "[u]pon completion of sentencing proceedings and the [C]ourt's imposition of ninety-six months on August 29, 2013, Petitioner instructed counsel to file an appeal of the sentence" (id., ¶ 4 (emphasis added));
3) "Petitioner's wife and family have made several attempts to contact counsel to no avail" (id., ¶ 5);
4) "counsel did not file an appeal nor informed  Petitioner any reason not do so aftert [sic] Petitioner making said request" (id. (emphasis added));
5) "counsel failed to file a timely appeal despite being instructed that Petitioner was interested in appealing his sentence" (id., ¶ 6 (emphasis added));
6) "Petitioner avers that he instructed appointed [sic] counsel [O'Hale] to file a notice of appeal" (id., ¶ 7 (emphasis added) (brackets (other than for "sic") in original));
7) "Petitioner avers in fact specific sworn affidavit that he had informed counsel to file a direct appeal, and was also under the impression that counsel [O'Hale] had abided by the Petitioner's reasonable request" (id., ¶ 8 (emphasis added) ...