MEMORANDUM AND ORDER
Sam A. Crow, U.S. District Senior Judge
The Tenth Circuit reversed and remanded this case in part and directed the district court to vacate its order denying Mr. Lee-Speight’s motion for relief pursuant to 28 U.S.C. § 2255 on the sole issue of defense counsel’s alleged ineffectiveness in not filing a notice of appeal. (Dk. 75)., The panel directed the district court to “further develop the factual record as necessary to resolve in the first instance the merits of” the defendant’s § 2255 motion. (Dk. 75, p. 2). The court has fully complied with the circuit’s mandate by appointing counsel for Mr. Lee-Speight, by providing the parties with extended periods to supplement the record with submissions, and by determining the need for an evidentiary hearing and conducting the same on February 26, 2014. With the parties’ representation that the record is complete, the court issues the following as its findings of fact and conclusions of law pursuant to 28 U.S.C. § 2255(b).
During a traffic stop of a pickup that the defendant Dion M. Lee-Speight was driving on November 10, 2009, officers found nine individually bagged quantities of marijuana, one larger bag of marijuana, and a loaded handgun all concealed in a custom-sewn pocket inside the defendant’s underwear. (Dk. 41, p. 7). The grand jury returned an indictment charging the defendant with one count of possession with the intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1), one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) with reference to the general penalty provision in § 924(a)(2) and to the penalty provision in the Armed Career Criminal Act (“ACCA”) § 924(e), and one count of possession of a firearm in furtherance of a drug trafficking act in violation of 18 U.S.C. § 924(c). His appointed counsel zealously challenged the traffic stop in a motion to suppress which was denied after an evidentiary hearing. (Dks. 12 and 22). The government subsequently filed a 21 U.S.C. § 851 information disclosing its intent for sentencing to rely on defendant’s prior state conviction in September of 2005 for sale of an opiate/narcotic. (Dk. 24). On August 3, 2010, the defendant entered a plea of guilty to count one pursuant to a plea agreement in which the government would dismiss the other two counts and the defendant would “not seek a sentence for Count 1 of less than the lower of the high end of the advisory sentencing guideline range determined to be appropriate by the Court or 96 months.” (Dk. 26, pp. 8-9).
Findings of Fact
The defendant’s appointed counsel moved the court to continue the sentencing and to allow him to withdraw from his representation of the defendant because of a deteriorated working relationship. This motion was granted. (Dk. 35). The court immediately appointed Thomas Lemon as the defendant’s new counsel on October 19, 2010. As Mr. Lemon testified at the hearing, he has served as a CJA attorney for 15 years and represented approximately 100 federal defendants during that period. Upon his appointment in this case, Mr. Lemon received and reviewed the prior counsel’s files as well as the discovery provided by the government. He then met with the defendant asking for his thoughts on what was wrong with prior counsel’s defense of the case and with the plea agreement that had been made. Seeing that this case had been heavily litigated, Mr. Lemon told the defendant that his prior counsel was “a really good attorney” but that he would take a “fresh” look to see if any mistakes had been made. Mr. Lemon reviewed the PSR and persuaded the PSR’s writer to correct one mistake, but this correction had no impact on the sentence. Prior to the sentencing, Mr. Lemon met with the defendant three times and told him that his prior counsel had negotiated a “good deal” as the agreed sentence was nearly one-half of what he could have faced because of the ACCA’s applicability. Mr. Lemon also investigated Mr. Lee-Speight’s complaint that he was not the named defendant on one of the listed convictions. Mr. Lemon took him photographic evidence from the prosecutor’s office.
At the sentencing hearing, the court announced the tentative sentence of 96 months and its findings that the defendant met the career offender requirements, that the sentencing guideline range was 77 to 96 months, but that the defendant had agreed to not seek a sentence lower than 96 months. (Dk. 55, p. 5-6). The defendant read a prepared statement to the court that addressed taking responsibility for his actions, apologized to friends, family and court, and then stated the following:
Lastly to Judge Crow, you are a veteran who has earned great respect and dignity in your profession and I cannot and will not try to fill your shoes. But in my opinion, in Count 1, possession with intent to distribute 48 grams of marijuana, I do believe the statutory guidelines are 0 to 120 months in which the prosecution and my defense counsel has agreed upon 96 months.
Now, in all due respect to the prosecution and to my defense counsel, I was told my best interest had occurred. And in my opinion, I do believe the Court should impose a sentence significant but not greater than necessary and to reflect the seriousness of the crime, to promote respect for the law, and to provide just punishment for the offence.
In conclusion, I believe that 96 months is greater than necessary and I hope the Court takes my statements into consideration. I thank you for your time.
(R. 55, pp. 8-10). The defendant testified in this § 2255 hearing that his statement at sentencing “stressed” that the length of his imprisonment was “too great for his drug amount.” The transcript does not confirm the defendant’s characterization of a single sentence as being what he “stressed” in his prepared statement. Nor does the transcript show the defendant directly linked his comment over the length of the sentence to the amount of the drugs involved. As explained in the PSR and mentioned by the court at sentencing, the defendant’s effective sentencing guideline range was determined by his career offender status and not by the amount of marijuana. (Dk. 41, p. 9).
The court subsequently imposed a sentence of 96 months and advised the defendant:
that it is your right to appeal the conviction and sentence, but only to the extent that you have not waived that right in the plea agreement. You can also lose your right to appeal if you do not timely file a notice of appeal in the district court.
Rule 4(b) of the Federal Rules of Appellate Procedure give you 14 days after the entry of judgment to file a notice of appeal. If you so request, the Clerk of the Court shall immediately prepare and file a notice of appeal on your behalf. If you are unable to pay the cost of an ...