United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE
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.
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.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).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
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.
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. 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.
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.
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.
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
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. 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.
did not testify at the hearing.
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.
Failure To File An Appeal As Requested
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 ...