United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge
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. 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.
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.
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).
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
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.
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.
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.
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.
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, ...