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Starkie v. United States

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

August 5, 2019

Gary Starkie, Petitioner,
v.
United States of America, Respondent.

          ORDER & MEMORANDUM & RECOMMENDATION

          ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE.

         Petitioner Gary Starkie, proceeding under 28 U.S.C. § 2255, asks the court to vacate his sentence because, he claims, his attorneys' performance fell below the level required by the Constitution. D.E. 154; D.E. 66. His argument is based on two alleged flaws in his attorneys' performance. First, he claims that the attorney who represented him during his direct appeal was unaware of and did not advise him of the Supreme Court's decision in Nelson v. Colorado, 137 S.Ct. 1249 (2017). And, second, he claims that the attorney who represented him at his resentencing did not adequately advise him of his right to appeal given his intellectual capacity and mental health issues and failed to file an appeal after Starkie asked him to do so. D.E. 154, 160.

         The Government responded to Starkie's motion by filing a partial motion to dismiss. It claims that Starkie's Nelson claim fails for two reasons. To begin with, the Government claims, Starkie's appellate counsel could not have erred by not being aware of Nelson, because the Supreme Court had not issued its opinion before his appeal concluded. And even if Nelson were on the books at the time of his appeal, the Government claims that it does not apply to his case. D.E. 162.

         The Government agreed that Starkie was entitled to an evidentiary hearing on the issues related to filing an appeal after resentencing. Id. The undersigned held an evidentiary hearing in April 2019. At the hearing, besides the ground raised in the motion, Starkie's counsel claimed that the attorney who represented Starkie at resentencing had a duty to determine that Starkie was unable to understand his appeal rights and to try to address this fact. At the end of the hearing, the Government argued that Starkie had no right to relief on his second claim.

         After the hearing the court allowed the parties to file supplemental briefs. The Government filed its supplemental brief, D.E. 215, along with a motion for leave to file it out of time. D.E. 216. Starkie moved to amend or correct his § 2255 motion, D.E. 217, to which the Government responded, D.E. 224. Starkie also sought leave to file his pleading out of time, D.E. 221, along with a motion to expand the record seeking inclusion of exhibits referenced at the hearing but never moved into evidence. D.E. 223.

         The undersigned grants the parties' motions to file their pleadings out of time (D.E. 216, 221), and grants Starkie's motion to expand the record (D.E. 223). But the undersigned denies Starkie's motion to amend or correct his § 2255 motion (D.E. 217)as the claims it seeks to add are either duplicative of existing claims or barred by the statute of limitations.

         After reviewing the docket and the arguments of the parties, the undersigned finds that Starkie has no right to relief on his Nelson claim for the reasons stated by the Government. And he has no right to relief on his appeal-based claims because his attorney complied with his duties under the Constitution. Thus, the undersigned recommends that the court deny Starkie's Motion to Vacate (D.E. 154) and grant the Government's Motion to Dismiss (D.E. 161).

         I. Procedural Background

         A federal jury found Starkie guilty of possession of a firearm by a felon in January 2014. D.E. 66. Several months later, the District Court sentenced Starkie to 300 months in prison. D.E. 105, 107. Starkie unsuccessfully appealed his sentence to the Fourth Circuit in early 2015. D.E. 117. But later that year, after the Supreme Court declared the Armed Career Criminal Act's residual clause to be unconstitutional in Johnson v. United States, Starkie asked the Fourth Circuit to rehear his case. D.E. 120. The Court of Appeals agreed to reconsider its decision and eventually vacated his sentence and remanded the case for resentencing. D.E. 120, 124.

         The District Court resentenced Starkie to 114 months in prison on May 10, 2017. D.E. 146. Starkie did not appeal the Amended Judgment. But he did move to vacate his sentence in April 2018, D.E. 154, which he moved to amend about two weeks later. D.E. 160. One month later the Government asked the court to dismiss Starkie's motion. D.E. 161.

         II. Testimony Regarding Starkie's Right to Appeal After Resentencing

         At the evidentiary hearing, several witnesses testified about Starkie's mental status and events related to whether Starkie wished to appeal the Amended Judgment the court imposed after his resentencing.

         a. Starkie's Testimony

         The concerns for Starkie's mental health stem from a violent episode he was involved in during his youth. Starkie grew up in a household with an alcoholic father who would regularly and viciously abuse Starkie's mother. Tr. at 13:9-14, D.E. 208. When Starkie was 9 years old, he witnessed the gruesome death of both his parents in a murder-suicide. Tr. at 13:24-14:19. While Starkie was sitting on a couch, he saw his father slash his mother's head with a knife. Id. As Starkie tried to help his mother, his father returned to the room and murdered her by shooting her in the face with a shotgun. Tr. at 13:24-14:19. Then, with Starkie watching, his father ended his own life by turning the gun on himself. Id.

         Many years later, Starkie found himself being resentenced in federal court for a conviction of being a felon in possession of a firearm. Edward K. Roberts, a court-appointed attorney represented Starkie at his resentencing. Id. at 24:24-25:1. Roberts had not represented Starkie during his trial, at his first sentencing, or during his initial appeal. Tr. at 22:24-23:5 & 23:21- 24:14. In the weeks before the resentencing, Starkie claims that he and Roberts met once and exchanged several letters. Tr. at 25:5-7 & 41:8-15.

         At the resentencing, Roberts argued that Starkie should receive a shorter sentence based on the events of his childhood and letters submitted by Starkie's family members. Tr. at 25:24-26:3. Along with imposing a sentence of 114 months in prison, tr. at 36:2-3, Judge Flanagan advised Starkie of his right to appeal, tr. at 27:2-8.

         After the resentencing, Starkie met with Roberts. Id. at 27:15-19. Starkie was very upset about the sentence he received and disagreed with the judge's decision. Id. Starkie claims that as part of their discussion he told Roberts that he wanted to “go back to court.” Id. at 27:23.

         A few days later, Roberts sent a letter to Starkie explaining what had happened at sentencing and providing his view that there was a limited chance that Starkie could prevail on appeal. Id. at 28:16-25. But the letter said Roberts would file an appeal if Starkie wanted to do so. Id.

         Starkie received Roberts's letter while he was at Piedmont Regional Jail. Tr. at 28:2-4. Another inmate, Donald Garner, read Roberts's letter and explained it to Starkie. Id. at 60:2-3. Garner advised Starkie to write Roberts and tell him he did not want to appeal and that he was content. Id. at 29:4-17. Garner told Starkie that if he did not leave things alone, and he went back to court, he may get a higher sentence, which scared Starkie. Id. at 61:23-25. So Starkie, with Garner's help, wrote a letter to Roberts that said, in part

I know I have grounds to appeal, but I'm not. I'm just going to move forward now. I also know what went wrong with my case, but I can't complain. I won, and I'm content. Again, thank you kindly.

Id. at 31:7-10.

         After arriving back at FCI Edgefield, Starkie enlisted the help of another inmate, Jimmy Nance. Id. at 53:11-12. Nance prepared Starkie's § 2255 petition, which Starkie reviewed and signed. Id. at 54:14-20. Starkie said he did not use the word “appeal” but told Nance that he informed Roberts that he wanted to go back to court. Id. at 55:23-56:5; 56:25-57:1.

         After his resentencing, Starkie sent a few letters to Roberts and called him on at least two occasions. Id. at 56:15-18. Starkie wrote to Roberts's secretary requesting some of his things back. Id. at 63:12-13. But the letter did not state that Starkie wanted to go back to court or mention an appeal. Id. at 63:14-16, 64:4-10.

         Starkie maintains that if he understood “appeal” meant going back to court, he would have used that term in asking Roberts to file an appeal. Id. at 73:10-15.

         b. Inmate Jimmy Nance

         Jimmy Nance was a fellow inmate and self-described “jailhouse lawyer, ” who discussed Starkie's legal proceedings with him. Tr. at 79:21-80:11. Nance testified that Starkie told him that he instructed Roberts to file a notice of appeal. Id. at 84:21-24; 82:13-15. Nance testified that Starkie used the term “appeal” when discussing the matter. Id. at 85:17-18. Although he may not have understood what was involved in an appeal, Starkie knew he needed to do it to stay in court or go back to court. Id. at 85:21-86:4. Nance also stated that whether Starkie told Roberts he wanted to file an appeal or go back to court, they had the same meaning to him. Id. at 91:4-11.

         Nance spent at least 100 hours with Starkie and observed that he had issues with his memory and recollecting events. Id. at 93:8-10; 93:15-18. Nance said that he would have been surprised if Starkie could recall word-for-word statements made two to three years earlier. Id. at 93:16-94:6. And Nance stated that Starkie never told him that he informed Roberts that he did not want to go back to court or mess with his sentence. Id. at 98:5-8.

         c. Dr. Frank Wood

         Starkie presented Frank Wood, Ph.D., as an expert witness in neuropsychology and schizoid diagnoses. Id. at 102:16; 110:20-21. Dr. Wood examined Starkie to determine his level of cognitive functioning. Id. at 111:2-4. Dr. Wood met with Starkie three times for a total of five to six hours. Id. at 111:24-112:3.

         Dr. Wood concluded Starkie had intellectual disability with a schizophreniform disorder. Id. at 126:17-18, 126:23-25. According to Dr. Wood because of Starkie's impairments, he would need someone to independently advise him and help decide what to do. Id. at 150:18-20, 151:10- 12.

         Dr. Wood stated that it was possible that a person may not know of Starkie's issues with comprehension and understanding. Id. at 145:16-25. Such deficits would not be apparent to an untrained individual without Dr. Wood's level of expertise. Id. at 146:1-6. Dr. Wood testified that an attorney would not be able to recognize Starkie's issues of understanding and comprehension Id. at 153:7-11. And Dr. Wood acknowledged that Starkie's memory was unreliable. Id. at 156:21- 24.

         d. ...


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