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Terry v. United States

United States District Court, E.D. North Carolina, Western Division

May 2, 2018




         This matter is before the court for consideration of Petitioner's 28 U.S.C. § 2255 motion to vacate, filed on March 16, 2017 [DE #92]. The Government has moved to dismiss [DE #101] for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6), and Petitioner has responded [DE #109]. This matter has been referred to the undersigned for memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the Rules Governing Section 2255 Proceedings. For the reasons stated herein, it is recommended that Petitioner's motion be granted as to his claim that his trial attorney deprived him of the effective assistance of counsel by failing to file a notice of appeal and that the Government's motion be denied.


         On July 17, 2013, Petitioner pleaded guilty to counts three, four, and six of an indictment filed on March 21, 2013, each count alleging a violation of 18 U.S.C. §§ 922(g)(1) and 924. On July 9, 2014, the court sentenced Petitioner to a total imprisonment term of 125 months and a supervised release term of three years [DE ##74, 77]. Pursuant to a written plea agreement, Petitioner waived his right to direct appeal and to raise any post-conviction challenge under 28 U.S.C. § 2255 except for claims based on ineffective assistance of counsel or prosecutorial misconduct. (Plea Agt. [DE #46] at 1.) Petitioner now moves to vacate his sentence pursuant to 28 U.S.C. § 2255 on the basis of, among other things, ineffective assistance of counsel.

         The court held an evidentiary hearing on January 9, 2018, to develop the record on Petitioner's claim that he was deprived of his right to effective assistance of counsel as a result of his attorney's failure to file a notice of appeal and as to the timeliness of Petitioner's motion to vacate. Petitioner was present and represented by Cindy Popkin-Bradley at the hearing, and the Government was represented by Assistant United States Attorney Donald Pender. Petitioner's counsel called Petitioner as a witness, and the Government called Petitioner's trial attorney, Mr. Frank Jackson, as a witness.


         During his sentencing hearing, Petitioner's attorney vigorously contested a cross-reference to attempted murder in Petitioner's Guidelines sentencing range offense level. (Sentencing Tr. [DE #80] at 8-11, 14; Evid. Hrg. Tr. [DE #124] at 42.) Near the conclusion of Petitioner's sentencing hearing, the court and Petitioner's trial attorney engaged in a colloquy regarding direct appeal of Petitioner's sentence. The sentencing transcript reveals Mr. Jackson stated to the court, “We will give notice of appeal . . . in writing, within 14 days.” (Sent. Tr. at 22.) No notice of appeal was ever filed. Consequently, the Fourth Circuit never reviewed Petitioner's case on direct appeal.

         At the evidentiary hearing on Petitioner's motion to vacate, Petitioner testified that, while seated at counsel's table during his sentencing hearing, he instructed Mr. Jackson to file a notice of appeal. (Evid. Hrg. Tr. at 13-14, 38.)

         Mr. Jackson also testified at the evidentiary hearing on Petitioner's motion. Mr. Jackson has extensive experience in criminal cases at the trial level-he worked as a state prosecutor in Wake County, North Carolina, for twenty-five years and as a criminal defense attorney in private practice for approximately twenty years. (Evid. Hrg. Tr. at 40.) He exclusively practices criminal defense at the trial level and does not represent individuals on appeal. (Id. at 40-41.) He also testified that it is his normal practice to file a written notice of appeal in all federal criminal cases as soon as judgment is entered. (Id. at 41, 45.) When questioned about Petitioner's case, Mr. Jackson confirmed he stated in open court, near the conclusion of the sentencing hearing that he would file a notice of appeal and that it had been his intention to do so. (Id.) Mr. Jackson did not speak with Petitioner following the sentencing hearing.[1](Id. at 41, 43.) Mr. Jackson could not recall why he did not file a notice of appeal. (Id. at 41.)

         Despite there being no notice of appeal filed, a sentencing transcript from the official court reporter was docketed on October 2, 2014. (Sentencing Tr. [DE #80].) Electronic notice was sent via CM/ECF to Mr. Jackson, in addition to the United States Attorney. During the evidentiary hearing, Petitioner testified that his family members called the court reporter and paid $85 for two copies of the sentencing transcript. (Evid. Hrg. Tr. at 19-20.) Petitioner testified that he received one of these transcript copies towards the end of 2014. (Id. at 20.) The dates of entry of the sentencing transcript and the related objection/redaction deadlines are consistent with Petitioner's testimony. (See [DE #80] and non-public entries from Nov. 24, 2014, and Jan. 7, 2015.) Moreover, the undersigned discerns no reason-absent a request made by Petitioner or the Government-for the court reporter to have transcribed the sentencing hearing. There being no evidence that the Government requested the transcript, the undersigned credits Petitioner's testimony that his family requested and purchased copies of the sentencing transcript.

         Petitioner also testified that he attempted to contact Mr. Jackson-both personally and through family members-via telephone in 2014 and 2015 to check on the status of his direct appeal. (Evid. Hrg. Tr. at 15-17, 35.) More specifically, Petitioner stated that he called “Frank Jackson” three or four times via three-way calling. (Id. at 16-17, 35.) He testified he left at least one message with a secretary inquiring about his direct appeal. (Id. at 17.) He also testified that his family members called and had difficulty reaching Mr. Jackson, but that he believed they might have spoken to Mr. Jackson sometime in 2015. (Id. at 17-18, 35.) Petitioner never sent a letter to Mr. Jackson, nor did he write to the clerk of court concerning his inability to contact Mr. Jackson. (Id. at 35.)

         Mr. Jackson testified that he had neither telephonic nor written contact with Petitioner or his family members after the sentencing hearing in July 2014. (Evid. Hrg. Tr. at 42-43.) Since 2010, Mr. Jackson has not had a secretary and has handled all of his secretarial work himself. (Id. at 43.) He has had the same work cellular phone number since 2010, which he provided to Petitioner and Petitioner's family during the course of representing Petitioner. (Id. at 44.) Nobody-not even Mr. Jackson's wife-answers his work cellular phone. (Id.)

         On June 8, 2015, the clerk's office in New Bern, North Carolina, docketed a handwritten letter received from Petitioner. (Letter [DE #81].) This letter states that Petitioner “intend[s] to file a 2255 with this court” and requests a copy of the docket sheet for case number 5:13-CR-0007-FL-1. The letter is undated, but the envelope was postmarked June 5, 2015, from Pittsburgh, Pennsylvania. Petitioner mailed the letter from United States Penitentiary-Hazelton (USP Hazelton), which is located in Bruceton Mills, West Virginia. An internal note from the clerk's office accompanying this docket entry states, “Copy of docket sheet and 2255 form mailed to Jammee Duchea Terry 57173-056, USP Hazelton, U.S. Penitentiary, PO Box 2000, Bruceton Mills, WV 26525-2000.”

         Petitioner claims he first learned no notice of appeal had been filed in his case in September 2016. (Mem. Supp. Mot. Vacate [DE #93] at 2; Evid. Hrg. Tr. at 24-25.) Petitioner testified that he, via a three-way telephone call with his father, had called the clerk of court to inquire about his appeal and was told no appeal had been filed. (Evid. Hrg. Tr. at 24-25.) On September 21, 2016, Petitioner mailed a letter to the clerk of court asking for help in filing a § 2255 motion based on his trial attorney's failure to appeal. (Motion [DE #84].)

         In response to Petitioner's letter, the court entered an order, pursuant to Castro v. United States, 540 U.S. 375 (2003), advising Petitioner that it intended to recharacterize his letter as an attempt to file a § 2255 motion. (Dec. 16, 2016, Castro Order [DE #86].) In early January 2017, Petitioner filed a flurry of motions in response to the court's order. (See Resp. Castro Order [DE #87]; Mot. Reinstate Direct Appeal Rights [DE #88]; Mot. Receive Docs. [DE #89].) The court issued an order on February 22, 2017, denying in part and granting in part Petitioner's various requests and again advising Petitioner the court intended to construe his filings as a § 2255 motion. (Order [DE #91].) The court gave Petitioner until March 20, 2017, “to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has.” (Id.) The court further indicated it would consider his ineffective assistance of counsel claim to have been filed as of the filing of his original letter if Petitioner consented to its characterization as ...

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