United States District Court, E.D. North Carolina, Western Division
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE.
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
OF THE CASE
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.
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.
OF THE FACTS
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
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,
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.(Id. at 41, 43.) Mr. Jackson could
not recall why he did not file a notice of appeal.
(Id. at 41.)
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.
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.)
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.)
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.”
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
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 ...