United States District Court, E.D. North Carolina, Western Division
ORDER & MEMORANDUM & RECOMMENDATION
T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE.
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,
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.
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.
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.
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.
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).
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,
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.
Testimony Regarding Starkie's Right to Appeal After
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
Inmate Jimmy Nance
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.
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.
Dr. Frank Wood
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.
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,
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-