United States District Court, D. Alaska
ORDER ON MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE UNDER 28 U.S.C. § 2255 [DKT. 146] AND MOTION TO
STAY 28 U.S.C. § 2255 MOTION OR VACATE THE CONVICTION
AND ALLOW AN APPEAL TO PROCEED [DKT. 161]
TIMOTHY M. BURGESS UNITED STATES DISTRICT JUDGE.
I.
INTRODUCTION
The
matter comes before the Court on Petitioner Matthew Adrian
Colding's Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255 (the “Motion to
Vacate”)[1] and Motion to Stay or Vacate the
Conviction and Allow an Appeal to Proceed (the “Motion
to Stay”).[2]Colding is currently serving a 120-month
sentence for a violation of 18 U.S.C. § 922(g): Felon in
Possession of a Firearm.[3] In his Motion to Vacate, Colding claims
he was given ineffective assistance of counsel during
critical stages of his case, in violation of his Sixth
Amendment rights.[4]Later, in his Motion to Stay, Colding
requested the Court either: (1) stay proceedings on his
Motion to Vacate to allow him to attempt to obtain an
affidavit from trial counsel to support his ineffective
assistance claims; or (2) assume Colding's claim is true
and vacate and reenter the Court's judgment to allow an
appeal to proceed.[5] The Motions are now fully briefed and ripe
for resolution.[6] For the following reasons, Colding's
Motion to Vacate is DENIED and Colding's
Motion to Stay is DENIED.
II.
BACKGROUND
On May
18, 2017, Colding was indicted for a violation of 18 U.S.C.
§ 922: Felon in Possession of a Firearm.[7] Attorney Darrel
J. Gardner (“trial counsel”) had previously been
appointed to represent Colding.[8] Initially, Colding pleaded not
guilty.[9] On August 3, 2018, Colding changed his
plea to guilty pursuant to a written Plea Agreement with the
Government.[10] In the Plea 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
and the voluntariness of the plea.”[11] The Court
entered its Judgment on August 20, 2018, sentencing Colding
to 120 months of incarceration, followed by three years of
supervised release.[12]
On
April 10, 2019, Colding, through counsel, filed the Motion to
Vacate under 28 U.S.C. § 2255.[13] Colding's Motion to
Vacate, supported by a Memorandum in Support of the Motion to
Vacate, Set Aside, or Correct Sentence (“Memorandum in
Support”), [14] raises two grounds for relief: (1) trial
counsel's performance was unconstitutionally deficient
for not correcting a misstatement by the Court at the change
of plea hearing;[15] and (2) trial counsel rendered
ineffective assistance of counsel for not filing a notice of
appeal despite the appeal waiver in Colding's Plea
Agreement.[16]
The
Government opposes the Motion to Vacate.[17] In its
opposition, the Government argues that the Court made no
misstatements at the plea hearing.[18] The Government further
argues that Colding's trial counsel cannot be said to be
deficient for failing to file a Notice of Appeal where there
is “not a scintilla of evidence petitioner requested an
appeal.”[19]
On
August 3, 2019, Colding filed the Motion to
Stay.[20] Colding argued that the intervening
Ninth Circuit decision in United States v.
Fabian-Baltazar, [21] issued on July 30, 2019, required the
Court to either assume without deciding that Colding's
claim regarding trial counsel's failure to move forward
on an appeal is true and vacate and reenter the judgment so
that an appeal may proceed or, alternatively, stay ruling on
the Motion to Vacate and allow Colding to gather and put on
evidence as to whether he directed trial counsel to file a
notice of appeal and whether trial counsel adequately
consulted Colding about a potential appeal.[22]
The
United States filed a Response in Opposition to
Defendant's Motion to Stay or Vacate Conviction and Allow
Appeal to Proceed (“Opposition to Stay”) on
August 5, 2019.[23] The United States argued that Colding
has failed to allege that he ever requested his attorney file
an appeal, or that his attorney failed to consult with him
regarding an appeal.[24] Therefore, the United States argued, an
evidentiary hearing under Fabian-Baltazar was
unnecessary.[25]
On the
same day, Colding filed a Reply to Government's Response
to Motion to Vacate Conviction and Allow an Appeal to Proceed
or Stay Proceeding (“Reply to Opposition to
Stay”).[26]First, Colding argues that, although he
did not allege that he directed his attorney to file a notice
of appeal in his Motion to Vacate, Fabian-Baltazar
still directs courts to inquire into whether Colding was
adequately consulted regarding an appeal.[27] Further, on
August 11, 2019, Colding requested that the record be
expanded to include trial counsel's email response
regarding his communications with Colding about an
appeal.[28] In the email, trial counsel states:
As was my practice at the time of Mr. Colding's case,
immediately after sentencing I would have told him to call me
if he had any questions or concerns about his sentence or
appeal rights. I checked my notes from his file, and I do not
see any indication that he ever asked me about filing an
appeal post sentencing, nor do I recall any such request on
his part.[29]
The
United States did not oppose Colding's Motion to Expand
the Record and stated that it “believes the
representation to be correct.”[30] The Court granted
Colding's Motion to Expand the Record pursuant to Rule 7
on the ground that-although not conclusive under
Fabian-Baltazar- it was relevant to Colding's
§ 2255 proceedings.[31]
On
October 18, 2019, the Court sua sponte set an
evidentiary hearing for October 25, 2019.[32] As discussed
below, the purpose of the evidentiary hearing was to
determine (1) whether Colding requested that trial counsel
file a notice of appeal following his sentence and, if not,
(2) whether trial counsel adequately consulted Colding on his
rights to appeal his case. Colding was the only witness
called to testify.[33] Following the close of evidence, the
parties were ordered to submit written closing arguments on
the available evidence.[34]
III.
LEGAL STANDARD
Under
28 U.S.C. § 2255, a district court may “vacate,
set aside, or correct” a sentence of a federal prisoner
that was imposed in violation of the Constitution or a law of
the United States.[35] On a motion for relief under 28 U.S.C.
§ 2255, “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief, the court shall . . . grant a prompt
hearing thereon, determine the issues and make findings of
fact and conclusions of law with respect
thereto.”[36] If the Court determines that relief is
warranted, “the court shall vacate and set the judgment
aside and shall discharge the prisoner or resentence him or
grant a new trial or correct the sentence as may appear
appropriate.”[37]
A.
Ineffective Assistance of Counsel Generally
A claim
of ineffective assistance of counsel is rooted in the Sixth
Amendment right to counsel, which is applicable at the
plea-bargaining stage of a criminal proceeding and at
sentencing.[38] The Sixth Amendment guarantees
“the right to counsel of reasonable
competence.”[39]Generally, a defendant asserting a claim
of ineffective assistance of counsel must satisfy the
two-element test defined in Strickland v.
Washington.[40] Under that test, a defendant must show
that (1) counsel's performance was deficient,
i.e., “fell below ‘an objective standard
of reasonableness;'”[41] and (2) prejudice,
i.e., that “there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been
different.”[42]
In
assessing the first element, an attorney's performance is
strongly presumed to fall within “the wide range of
reasonable professional competent
assistance.”[43] The Supreme Court has cautioned that
“it is necessary to ‘judge . . . counsel's
challenged conduct on the facts of the particular case,
viewed as of the time of counsel's
conduct.'”[44] Under the first element, the petitioner
“must prove all facts underlying his claims of
ineffective assistance by a preponderance of the
evidence.”[45] The second element, prejudice,
“focuses on the question whether counsel's
deficient performance renders the result of . . . the
proceeding fundamentally unfair.”[46] Thus, in
determining whether there is a reasonable probability that
the results of the proceeding would have been different,
courts look to whether that probability is “sufficient
to undermine confidence in the outcome.”[47]
This
standard is applied both in the context of cases that go to
trial and in the context of plea agreements. “Because
‘an intelligent assessment of the relative advantages
of pleading guilty is frequently impossible without the
assistance of an attorney' . . . counsel have a duty to
supply criminal defendants with necessary and accurate
information.”[48] Where a petitioner alleges ineffective
assistance of counsel when entering into a plea agreement,
“[t]he longstanding test for determining the validity
of a guilty plea is ‘whether the plea represents a
voluntary and intelligent choice among the alternative causes
of action open to the defendant.'”[49] Thus,
“[a] defendant who pleads guilty upon the advice of
counsel may only attack the voluntary and intelligent
character of the guilty plea by showing that the advice he
received from counsel was not within the range of competence
demanded of attorneys in criminal cases.”[50] In addition,
to satisfy the prejudice element of Strickland in
the context of a guilty plea, a defendant must “show
the outcome of the plea process would have been different
with competent advice[.]”[51]
B.
Ineffective Assistance of Counsel in Failing to File
Post-Conviction Notice of Appeal
Roe
v. Flores-Ortega [52]established that constitution requires
trial counsel in a criminal case to consult with their client
about filing for appeal when there is reason to think either
(1) that a rational defendant in their client's position
would want to appeal, or (2) that the defendant reasonably
demonstrated to counsel that he wished to pursue an
appeal.[53] Failure to consult the defendant or file
an appeal in such a case is presumptively
prejudicial.[54] However, until recently, it has been
left unclear whether the same presumption of prejudice
applies in cases where the defendant signed an appeal
waiver[55] as a part of a plea agreement.
On
February 27, 2019, the Supreme Court issued its decision in
Garza v. Idaho.[56] Garza concerned a case where
a defendant, Gilberto Garza, pleaded guilty under two plea
agreements, each containing a clause stating Garza
“waived his right to appeal.”[57] After Garza
had been sentenced, Garza told his trial counsel he wished to
appeal.[58] Garza's counsel, however, did not
file a notice of appeal.[59] Instead, Garza's counsel told him
an appeal would be “problematic because he waived his
right to appeal.”[60] After Garza's time to appeal had
elapsed, Garza raised an ineffective assistance
claim.[61]
The
Garza Court noted that the term “appeal
waivers” may “misleadingly suggest a monolithic
end to all appellate rights.”[62] “In fact, however,
no appeal waiver serves as an absolute bar to all appellate
claims.”[63] Certain claims may fall outside of the
scope of an appeal waiver or the government may waive the
waiver.[64] Given the possibility that a defendant
may end up raising claims beyond an appeal waiver's
scope, “simply filing a notice of appeal does not
necessarily breach a plea agreement.”[65]
The
Garza Court also clarified what it means to file a
notice of appeal.[66] Rather than proceeding with an appeal on
the merits, filing a notice of appeal is merely a
“ministerial task.”[67] For example, “a
notice of appeal need only identify who is appealing; what
‘judgment, order, or part thereof' is being
appealed; and ‘the court to which the appeal is
taken.'”[68] At this stage, a defendant's
particular claims on appeal are often “ill defined or
unknown” and choices regarding which arguments to raise
on appeal are left to appellate counsel.[69] Although
defendants subject to an appeal waiver “ha[ve] fewer
possible claims than some other appellants, ” they do
retain the right to file a notice of appeal.[70] Therefore,
trial counsel's failure to file a notice of appeal when
requested by their client constitutes ineffective assistance
of counsel, even where an appeal waiver is
present.[71]
Following
Garza, the Ninth Circuit published its per
curiam decision in
Fabian-Baltazar.[72] The case arose out of a §
2255 motion to vacate filed by Abel Heriberto
Fabian-Baltazar.[73] Pursuant to a plea agreement with the
United States, Fabian-Baltazar pleaded guilty to possession
of 50 grams or more of methamphetamine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A).[74] Fabian-Baltazar, through his plea
agreement, also waived his rights to appeal or collaterally
attack his sentence.[75] Nevertheless, Fabian-Baltazar filed the
§ 2255 motion claiming that his trial counsel rendered
ineffective assistance for failing to file a notice of
appeal.[76]
The
district court denied Fabian-Baltazar's motion on the
grounds that the appeal and collateral attack waivers in his
plea agreement barred his claim.[77] The Ninth Circuit
affirmed the district court's denial of the motion in
2017, noting that Fabian-Baltazar's motion did not
challenge the voluntariness of the waiver and, therefore, the
waiver was enforceable.[78] On May 21, 2018, Fabian-Baltazar then
petitioned the Supreme Court for
certiorari.[79] Prior to ruling on his petition, the
Supreme Court decided Garza. In light of its
decision in Garza, the Supreme Court denied
Fabian-Baltazar's motion and remanded the case to the
Ninth Circuit for further consideration.[80] Because
Fabian-Baltazar's § 2255 motion contended that he
expressly instructed his attorney to file a notice of appeal,
in light of Garza, the Ninth Circuit ordered that
the case be remanded to the district court to (1) determine
whether such an instruction was given, and if not, (2)
determine whether counsel failed to consult, and if so, (3)
determine whether that failure constituted deficient
performance.[81] If the district court found that
Fabian-Baltazar's trial counsel was ineffective, the
court could remedy the ineffective assistance by vacating and
reentering the judgment to allow an appeal to
proceed.[82] Thus, while Garza provides the
grounds for asserting an ineffective assistance claim in
light of an appeal waiver, Fabian-Baltazar describes
the procedural steps courts should follow in assessing such a
claim.
IV.
ANALYSIS
Colding
raises two grounds for relief: (1) trial counsel's
performance was unconstitutionally deficient for not
correcting a statement by the Court at his change of plea
hearing;[83] and (2) trial counsel rendered
ineffective assistance of counsel for not filing a notice of
appeal despite the appeal waiver in Colding's Plea
Agreement.[84] The Court addresses each claim in turn.
A.
Whether Trial Counsel Rendered Ineffective Assistance for
Failing to Correct Statements by the Court.
Colding
alleges that during his change of plea hearing, the Court
inaccurately stated that he had waived his right to appeal
and collaterally attack his conviction and sentence pursuant
to the Plea Agreement.[85] Specifically, Colding argues that the
appeal waiver contained in the Plea Agreement allowed him to
appeal or otherwise attack his sentence based on ineffective
assistance of counsel or voluntariness of his plea and the
Court's statement failed to take these two exceptions
into account.[86] Colding further argues that trial
counsel should have objected to or otherwise corrected the
Court's statement.[87] However, Colding's claim fails to
consider the context in which the statement was made. The
relevant portion of the Court's colloquy with Colding
reads as follows:
THE COURT: All right. Let's see. Okay. Getting back to
page two, bottom of that first paragraph A, so in addition to
you're agreeing to plead guilty to Count 1, you are also
agreeing to waive any right to appeal your conviction and
sentencing imposed under your agreement, as well as any right
to collaterally attack your conviction and sentence, except
upon the grounds of ineffective assistance of counsel or
whether or not your plea was voluntary. Do you understand
that?
COLDING: Yes.
THE COURT: What that means-well, it's important for you
to understand that you're giving up very valuable rights
by waiving your right to appeal and collaterally attack your
conviction and sentence. Do you understand that?
COLDING: Yes.[88]
Here,
the Court first advised Colding as to the contents of the
appeal waiver in his Plea Agreement.[89] The Court informed
Colding that he was waiving his right to appeal or
collaterally attack his sentence subject to two exceptions:
ineffective assistance and voluntariness of the
plea.[90]Colding explicitly stated that he
understood the scope of his appeal waiver.[91] Colding
concedes that the Court's first statement correctly
stated the contents of the agreement.[92]
Immediately
following this comprehensive description of the appeal waiver
provisions, the Court then went on to make sure that Colding
appreciated the seriousness of waiving certain rights to
challenge his conviction and sentence.[93] As part of
the subsequent advisement the Court did not repeat the
nuances the waiver-i.e. the exceptions for
ineffective assistance claims or challenges to the
voluntariness of the plea.[94] Taken alone, the second
advisement given by the Court could be construed as an
overstatement of the appeal waiver's scope. However, when
read alongside the more exhaustive explanation of the appeal
waiver, it is clear that Colding was correctly informed of
the waiver's scope and understood it. Thus, the
Court's statements, read in context, do not amount to
misstatements and Colding's trial counsel was right to
refrain from objecting to the Court's correct
characterizations of the agreement. Therefore, trial
counsel's performance did not “f[a]ll below
‘an objective standard of reasonableness, '”
nor did Colding suffer any prejudice.[95]
Accordingly,
Colding has failed to show that his Sixth Amendment right to
counsel was violated by trial counsel's choice not to
object to the Court's statements during his change of
plea hearing.
B.
Whether Trial Counsel Failed to Adequately Consult Colding on
Filing an Appeal Waiver
Colding's
trial counsel did not file a notice of appeal following
Colding's conviction and sentence. In his Motion to
Vacate, Colding asserts that his trial counsel failed to
adequately consult him on whether or not he wished to file an
appeal waiver.[96] This, Colding argues, amounts to
ineffective assistance of counsel in violation of the Sixth
Amendment.[97] However, as the Ninth Circuit prescribed
in Fabian-Baltazar, where a notice of appeal was not
filed, the Court must determine (1) whether Colding
instructed trial counsel to file a notice of appeal, and if
not, (2) whether trial counsel failed to consult, and if so,
(3) whether that failure constituted deficient
performance.[98]
Here,
the Parties have provided the Court has only two pieces of
evidence from which to make its findings: Colding's sworn
testimony during the evidentiary hearing[99] and the
unsworn email from Colding's trial counsel.[100]
Initially, Colding testified that trial counsel “never
consulted with [him] during the plea process about the
appellate waiver.”[101] However, upon further
questioning Colding stated that he could not remember whether
or not trial counsel had consulted with him immediately after
sentencing.[102] Specifically, Colding testified as
follows:
THE COURT: Did he say anything to you? So what I'm
interested in is whether there was any conversation at all
either by you or by him, right, you know, after the
sentencing.
THE WITNESS: I can't remember that.
THE COURT: Can't remember any?
THE DEFENDANT: I don't remember him saying anything. No,
I didn't say nothing.
THE COURT: You don't remember if you said anything and
you can't remember if he said anything?
THE WITNESS: I know I didn't say anything.
THE COURT: You know you didn't say anything to him?
THE WITNESS: I didn't say anything. I was so mad, my
feelings about it, that I couldn't say nothing.
THE COURT: I understand. Did he say anything to you?
THE WITNESS: That's just the part I don't remember as
well. I don't-I don't remember. I probably wasn't
listening for him or he could have said something to me, but
it could have been “bye” or something. I
don't remember.
THE COURT: You just don't remember if he said ...