United States District Court, D. Alaska
PROCEEDINGS: ORDER FROM CHAMBERS
HONORABLE TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE.
The
matter comes before the Court on Petitioner Matthew Adrian
Colding's Motion to Expand the Record (the
“Motion”) pursuant to Rule 7 of the rules
governing 28 U.S.C. § 2255 proceedings.[1]The Motion is
unopposed. The matter is now ripe for resolution by the
Court.
On May
18, 2017, Colding was indicted for a violation of 18 U.S.C.
§ 922, possession of a firearm by a felon.[2] He pleaded not
guilty.[3] On August 3, 2017, Colding changed his
plea to guilty pursuant to a Plea Agreement with the
Government.[4] In the Agreement, Colding purported to
“waive all rights to appeal the conviction and sentence
imposed under this agreement and will waive all rights to
collaterally attack the conviction and sentence, except on
the grounds of ineffective assistance of counsel or the
voluntariness of the plea(s).”[5] The Court entered its
judgment on August 20, 2018, sentencing Colding to 120
months' incarceration, followed by three years of
supervised release.[6]
On
April 10, 2019, Colding filed a Motion to Vacate his sentence
under 28 U.S.C. § 2255, [7]asserting his trial counsel was
deficient in violation of his Sixth Amendment
rights.[8] Specifically, Colding claims that his
trial counsel failed to correct alleged misstatements by the
Court regarding the effect of the appeal waiver in the Plea
Agreement.[9] Additionally, he claims that his trial
counsel was deficient for failing to file a notice of appeal
despite the appeal waiver in his plea
agreement.[10]The Government opposed the Motion to
Vacate.[11] In its Response, the Government argues
that the Court made no misstatements at the plea
hearing.[12] The Government further claims that
Colding's counsel cannot be said to be deficient where
there is “not a scintilla of evidence petitioner
requested an appeal.”[13]
Colding's
Motion now seeks to expand the record to include an email
from his trial counsel, Darrel Gardner, in which Attorney
Gardner states that he did not find “any indication
that [Colding] ever asked [Attorney Gardner] about filing an
appeal.”[14] The Court requested the Government to
respond to the Motion.[15] The Government did not oppose the
Motion.[16]
Rule
7(a) of the Rules Governing § 2255 Actions permits
courts considering a motion to vacate under § 2255 to
“direct the parties to expand the record by submitting
additional materials relating to the motion.” Materials
that may be added include “letters predating the filing
of the motion, documents, exhibits, and answers under oath to
written interrogatories propounded by the
judge.”[17]Under Local Rule 7(b) if the petition
requests the record be expanded, “[t]he petitioner must
file a motion for expansion of the record not later than
twenty-one (21) days after the answer is served and filed by
the respondent.” The motion must be accompanied by the
materials requested to be included in the
record.[18]
Colding's
Motion is timely and includes the documents to be
included.[19] Further, the Court finds that
Gardner's statements regarding whether Colding requested
an appeal-although perhaps not dispositive under recent
developments in the law[20]-is relevant to the substance of
Colding's ineffective assistance of counsel claim.
Accordingly,
the Petitioner's Motion to Expand the Record is
GRANTED. The Court will consider the exhibit
attached at docket 165-1 as part of the record in assessing
Colding's Motion to Vacate.
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Notes:
[1] Dkt. 165 (Motion).
[2] Dkt. 22 at 2 (Indictment).
[3] Dkt. 32.
[4] Dkts. 42 (Plea Agreement), 49 (Change
of Plea Minute ...