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United States v. Freeman

United States District Court, D. Kansas

August 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DERRICK L. FREEMAN, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge

         This case is before the court on defendant Derrick L. Freeman's Motion to Set-Aside and Re-Enter Judgment of Conviction for Purposes of Permitting Defendant to File a Notice of Appeal (Doc. 223) and Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 231) alleging ineffective assistance of counsel.[1] The government filed a response and argued that defendant's motions are untimely. Alternatively, the government requested a hearing on defendant's motions if they were not dismissed. The court held an evidentiary hearing on August 16, 2017, and for the reasons set forth below, dismisses defendant's motions as untimely.

         I. Factual Background

         Defendant pleaded guilty, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), to Counts One, Three, and Five of the superseding indictment. The parties proposed a sentence of 300 months in prison, three years of supervised release, and the mandatory special assessment of $100 per count of conviction. Defendant's plea agreement contained an appeal waiver-specifically, defendant “knowingly and voluntarily waive[d] any right to appeal or collaterally attack any matter in connection with this prosecution, the defendant's conviction, or the components of the sentence to be imposed.” The court accepted the parties' recommendations and in accordance with the parties' plea agreement, the court imposed a 300-month sentence-240 months on Count One, and 60 months each on Counts Three and Five, to be served concurrently. Judgment was entered on January 14, 2014. No direct appeal was filed and defendant filed his motion to set aside judgment and § 2255 motion on August 24, 2015, and November 16, 2015, respectively.

         II. Legal Standards

         The Antiterroism and Effective Death Penalty Act (“AEDPA”) governs defendant's § 2255 motion and establishes a one-year limitations period for federal prisoners seeking habeas relief. The limitations period commences on the latest of two relevant dates-the date on which the judgment of conviction becomes final, or the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of diligence. 28 U.S.C. § 2255(f)(1), (4); United States v. Denny, 694 F.3d 1185, 1188 (10th Cir. 2012). The court generally assumes that the limitations period begins to run at the time the movant's conviction becomes final unless the movant can show that it should begin at a later time. See United States v. Valencia, 472 F.3d 761, 763 (10th Cir. 2006).

         III. Discussion

         Defendant claims that he instructed trial counsel, Mr. Thomas Bartee, to file a notice of appeal. Defendant alleges that Mr. Bartee made affirmative representations to both defendant and his family that an appeal would be filed on sentencing issues; however, defendant recently discovered that no appeal was filed.

         Defendant's plea agreement contained an explicit waiver of appeal rights. Yet the court is mindful that defense counsel may not refuse to file a notice of appeal based upon a waiver in the plea agreement. United States v. Parker, 720 F.3d 781, 786 (10th Cir. 2013). “[A] lawyer who fails to follow a defendant's express instructions to file a notice of appeal acts in a manner that is professionally unreasonable.” United States v. Garrett, 402 F.3d 1262, 1265 (10th Cir. 2005) (citing Roe v. Flores-Ortega, 528 U.S. 470, 477-78 (2000)). “‘[W]hen counsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal would likely have had merit[].' This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel's failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant's wishes.” Flores-Ortega, 528 U.S. at 477.

         The Tenth Circuit has found that defense counsel's failure to file a notice of appeal, especially when there is an appeal waiver, is not egregious misconduct to justify equitable tolling. See United States v. Romero-Cruz, 245 F. App'x. 797, 800-01 (10th Cir. Aug. 20, 2007). On the other hand, the one-year clock under § 2255(f)(4) is a discovery rule provision that delays the accrual of a cause of action until the supporting facts could have been discovered through due diligence. Denny, 694 F.3d at 1189. The date on which the defendant should have discovered defense counsel's failure to file an appeal is a fact-specific inquiry. See United States v. Lopez, 194 F. App'x 511, 513 (10th Cir. 2006). Courts gauge reasonable diligence under an objective standard and consider when the defendant could have reasonably discovered that defense counsel failed to file a notice of appeal. Id.

         a. Due diligence

          At the evidentiary hearing, defendant testified that he pleaded guilty because Mr. Bartee assured him that his appeal rights were preserved. Even though he received the 300-month sentence he had asked for in the plea agreement, defendant claimed that he wanted the appeal to allow him to take advantage of favorable laws subsequently developed.

         Defendant testified that he was housed at five different facilities from the time he was sentenced on January 14, 2014, until he arrived at Terre Haute, Indiana in 2015. At each facility, defendant claims he called Mr. Bartee and spoke with two different assistants on several occasions. Defendant testified that he asked about the status of his appeal, and was told by these assistants that he would have to discuss the matter with Mr. Bartee. Defendant alleges that he left messages for Mr. Bartee, but Mr. Bartee never returned defendant's phone calls. Defendant also testified that he had another inmate assist him in writing a letter to Mr. Bartee inquiring about his appeal.

         When defendant was in Terre Haute, he met a jailhouse lawyer who was aware of Johnson v. United States, 135 S.Ct. 2551 (2015). The jailhouse lawyer helped defendant look up his case on a computer, and that was when defendant discovered that no appeal had been filed. Defendant cannot read or write, ...


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