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United States v. Smith

United States District Court, D. Kansas

March 24, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JUVON SMITH, Defendant. Criminal Action No. 12-20066-32-KHV

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE

         On March 19, 2014, the Court sentenced defendant to 180 months in prison. On February 23, 2015, defendant filed a motion to vacate his sentence under 28 U.S.C. § 2255. See Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #1753). On May 23, 2016, except for defendant's claim that counsel failed to file an appeal as requested, the Court overruled defendant's motion. See Memorandum And Order (Doc. #1946). On November 29, 2016, the Court held an evidentiary hearing on defendant's remaining claim. The parties filed post-hearing memoranda. See defendant's Supplemental Post-Hearing Brief On Motion To Vacate (Doc. #2006) filed January 6, 2017; Government's Supplemental Post-Hearing Brief On Motion To Vacate (Doc. #2017) filed March 1, 2017. For reasons stated below, the Court overrules defendant's remaining claim and denies a certificate of appealability.

         Factual Background

         On October 3, 2012, a grand jury charged Juvon Smith and some 50 other defendants with conspiracy to manufacture, to possess with intent to distribute and to distribute 280 grams or more of cocaine base and to possess with intent to distribute and to distribute five kilograms or more of a mixture and substance containing cocaine. See Second Superseding Indictment (Doc. # 402), Count 1.[1]The statutory penalty under Count 1 included a mandatory term of imprisonment of ten years to life. See 21 U.S.C. § 841(b)(1)(A)(ii), (iii). On May 27, 2013, the government filed a notice of prior conviction which increased the statutory minimum to 20 years. See Enhancement Information (Doc. #650). On May 29, 2013, defendant pled guilty to Count 1. See Plea Agreement (Doc. #687).[2]Defendant had a total offense level of 29 with a criminal history category V for a guideline range of 140 to 175 months. See Presentence Investigation Report (“PSIR”) (Doc. #1225) filed January 14, 2014, ¶ 146. Under Section 5G1.1 of the Sentencing Guidelines, the statutory minimum of 20 years trumped defendant's calculated guideline range under 21 U.S.C. § 841(b)(1)(A). See id., ¶¶ 145-46; U.S.S.G. § 5G1.1. At sentencing on March 19, 2014, in light of his assistance to authorities, the Court granted the government request to reduce defendant's sentence by 25 percent (60 months) under 18 U.S.C. § 3553(e). The Court sentenced defendant to 180 months in prison. Defendant did not appeal. Jason B. Billam represented defendant throughout the proceedings.

         On February 23, 2015, defendant filed a motion to vacate his sentence under 28 U.S.C. § 2255. Liberally construed, defendant's motion alleges that Billam provided ineffective assistance because (1) he “pressured” defendant to plead guilty, (2) he did not ask the Court to recommend that the Bureau of Prisons (“BOP”) consider him for the Residential Drug Abuse Treatment Program (“RDAP”), (3) he did not object to the statutory minimum of 20 years in prison, (4) he did not object to the harshness of the sentence and (5) he did not file an appeal after defendant asked him to do so. Motion Under 28 U.S.C. § 2255 (Doc. #1753) at 1-8, 11-16.

         On May 23, 2016, except for defendant's claim that counsel failed to file an appeal as requested, the Court overruled defendant's motion. See Memorandum And Order (Doc. #1946). On November 29, 2016, the Court held an evidentiary hearing on defendant's remaining claim that counsel failed to file an appeal that defendant had requested on the date of sentencing.[3] At the hearing, Billam testified that defendant never requested that he file a notice of appeal. See Transcript Of Hearing On Motion To Vacate (Doc. #1998) filed December 12, 2016 at 8, 38-39, 48-49. Billam further testified that if defendant had done so, he would have filed an appeal even if he personally believed that the grounds were baseless. See id. at 39-40, 49.

         Billam explained that before defendant pled guilty, they discussed various legal issues such as relevant conduct and the enhancement of the statutory minimum based on prior convictions. See Id. at 13-16, 23-25. Billam explained that if defendant took the plea, he would forego his right to appeal these issues. Billam told defendant that if he wanted to appeal the legal issues, he would likely be appealing from a life sentence based on his prior convictions. See id. at 14-15, 18. Defendant agreed to plead guilty and waive his right to appeal.

         Billam did not file any objections to the presentence investigation report. Billam testified that he thought that any objection (1) would likely be immaterial because the high end of the Guideline range was already below the statutory minimum of 20 years, (2) could potentially be a breach of the plea agreement, (3) could cause defendant to lose the benefit of the Section 5K1.1 motion and (4) could open the door for the government to prove multiple prior convictions which could have led to a mandatory life sentence. See id. at 24-26, 28-31, 34-36.

         After sentencing, Billam met with defendant and asked if he “was good with it [meaning everything]” and if he had any questions or concerns. Id. at 8. Defendant asked for a copy of the Section 5K1.1 motion for his file but did not otherwise ask questions or express concerns about his sentence. Id. at 9. Billam did not suggest an appeal because “we got what we asked the court for, and so I did not talk to him about appealing.” Id. at 38. Billam did not raise the issue of appeal because the length of defendant's sentence was what counsel and defendant had expected and the sentencing was consistent with their strategy throughout the case, i.e. to forego raising legal objections which appeared immaterial to defendant's sentence and carried a risk of an enhanced sentence up to life in prison. After Billam met with defendant, defendant's family member asked Billam for a copy of the sentencing transcript. Id. Billam explained that the court reporter would prepare one if they paid for it, but that he did not need it because the case was over. Id.

         At some point after the deadline to appeal had expired, defendant's mother contacted Billam and said defendant wanted to appeal the issue related to the two-level reduction (apparently Guideline Amendment 782) and change of law. See id. at 53. Billam explained that an appeal would be out of time and that in any event, it would not affect the outcome of the case.[4] See id. Defendant's mother told Billam that she would tell defendant. See id. at 54. Billam never heard anything further from defendant or his mother. See id.

         Defendant did not testify at the hearing.[5]

         Analysis

         The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To establish ineffective assistance of counsel, defendant must show that (1) the performance of counsel was deficient and (2) a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). To meet the first element, i.e. counsel's deficient performance, defendant must establish that counsel “made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. In other words, defendant must prove that counsel's performance was “below an objective standard of reasonableness.” United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992). Strickland mandates that the Court be “highly deferential” in its review of counsel's performance and “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” 466 U.S. at 689. The Court must not second-guess counsel's assistance with the benefit of hindsight simply because defendant was convicted and sentenced to a lengthy prison term. See id.

         I. Failure To File An Appeal As Requested

         In his Section 2255 motion, defendant claims that Billam provided ineffective assistance because he did not file an appeal after defendant asked him to do so. Motion Under 28 U.S.C. § 2255 (Doc. #1753) at 2-8. Where a lawyer disregards specific instructions to file a criminal appeal, counsel is deemed to have acted in a manner that is both professionally unreasonable and presumptively prejudicial. See Roe v. Flores-Ortega, 528 U.S. 470, 484-85 (2000); United States v. Snitz, 342 F.3d 1154, 1155-56 (10th Cir. 2003). If defendant requests an appeal, counsel must file a timely notice of appeal. If counsel believes that an ...


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