United States v. Lovell

Citation: 83 F. App'x 754Docket: No. 01-6499

Court: Court of Appeals for the Sixth Circuit; December 7, 2003; Federal Appellate Court

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Appellant Michael Lovell appeals on three grounds: (1) the denial of his motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255; (2) the request to proceed as if on a direct appeal while reserving the right to file a "first 2255 motion" later if the appeal is found meritorious; and (3) the denial of his opportunity to amend his motion. The district court had jurisdiction under 28 U.S.C. § 2255, and the appellate court has jurisdiction under 28 U.S.C. § 2253. 

Lovell was indicted for interstate transportation of a stolen vehicle and possession of crack cocaine. He filed a motion to suppress evidence on the grounds of involuntary consent, but a magistrate judge recommended denial, which the district court adopted without objection. Lovell's attorney did not consult him about appealing the recommendation or the 10-day objection deadline. Lovell ultimately pleaded guilty to both charges, receiving a 120-month sentence on Count I and a 360-month sentence on Count II, to run concurrently. He did not reserve the right to appeal and did not object to the pre-sentence report or appeal the judgment.

After filing a pro se motion to vacate on April 16, 2001, Lovell claimed ineffective assistance of counsel, arguing his attorney failed to consult him about an appeal despite suggesting to his family he would file one. The district court allowed the government to respond, and Lovell's new counsel appeared on July 30, 2001. On October 15, 2001, Lovell filed amendments to his motion without court permission, introducing six additional claims of ineffective assistance. The district court deemed these amendments untimely and unrelated to the original motion, thus not permissible under the statute of limitations. However, the court indicated it could still consider the issues raised in the amendments when ruling on the original motion regarding potential non-frivolous grounds for appeal.

An evidentiary hearing occurred on November 5, 2001, where the district court determined that the Appellant did not explicitly instruct his attorney, Talley, to appeal his sentence, although he expressed an "interest" in doing so. The court held that Talley had a duty to consult with the Appellant regarding appealable issues but found Talley's failure to do so to be unreasonable and deficient under professional standards. However, the court concluded that the Appellant was not prejudiced by Talley's performance, as he did not demonstrate that he would have pursued an appeal if consulted. The court also found the Appellant's claims for appeal to lack merit, consisting of three issues: (1) a violation of Apprendi v. New Jersey regarding the uncharged amount of crack cocaine; (2) ineffective assistance of counsel for failing to call witnesses and file objections during the suppression hearing; and (3) improper classification as a career offender based on two New Jersey convictions. The court dismissed the Apprendi argument, pointing out that the Appellant had stipulated to the amount and that his sentence was within the guideline range. Regarding the ineffective assistance claim, the court noted that the Appellant failed to show how Talley's actions related to appealable issues. For the two New Jersey convictions, the court found that they were separate incidents, thus not qualifying as a single offense. The Appellant's additional arguments, initially raised to amend his motion, were deemed abandoned as he did not present them at the hearing. The court rejected the Appellant's objection to this finding, emphasizing that he had the opportunity to raise those arguments at the evidentiary hearing, contrary to his claims. The court treated this objection as a motion to amend judgment and overruled it.

The Court of Appeals reviews district court denials of 2255 motions by examining factual findings for clear error and legal conclusions de novo. A criminal defendant is constitutionally entitled to effective assistance of counsel, as established in Strickland v. Washington. To prove ineffective assistance, a defendant must demonstrate both that counsel’s performance was deficient and that this deficiency prejudiced the defense, thereby undermining the reliability of the trial result. In Roe v. Flores-Ortega, the Supreme Court clarified that while the Strickland standard involves two components, if an attorney fails to file an appeal despite specific instructions from the defendant to do so, the defendant is entitled to an appeal without needing to prove that the appeal would have merit. Conversely, if a defendant instructs counsel not to file an appeal, they cannot claim ineffective assistance if the attorney follows these instructions. The Court also emphasized that when a defendant’s wishes regarding an appeal are unclear, the critical inquiry is whether counsel consulted the defendant about the appeal, assessing whether counsel informed the defendant of the appeal's pros and cons and made reasonable efforts to ascertain their wishes. A failure to consult constitutes deficient performance only if a rational defendant would want to appeal, indicated by non-frivolous grounds for appeal or expressed interest. If a defendant establishes that counsel’s performance was deficient, they must then demonstrate prejudice, which can involve evidence that they would have likely appealed had counsel consulted them or highlighting non-frivolous grounds for appeal. The Court recognized that while the deficiency and prejudice components can overlap, they should not be conflated in all cases.

To establish deficient performance by counsel regarding an appeal, a defendant must show he expressed interest in an appeal, but this alone does not suffice to prove that he would have directed counsel to file one had he received proper advice. To demonstrate prejudice, the defendant must show that "but for counsel’s deficient conduct," he would have appealed. Although specific non-frivolous grounds for appeal are not required to establish this, some evidence must indicate that the defendant would have pursued an appeal had he been consulted. 

The Strickland test has two scenarios where both components can be satisfied simultaneously: (1) when a defendant explicitly instructs his attorney to file an appeal, and the attorney fails to do so, or (2) when non-frivolous grounds for appeal exist but no appeal is filed. If neither exists, the defendant must provide separate proof of both deficient performance and prejudice to claim ineffective assistance of counsel.

In this case, the trial court found that the Appellant did not expressly ask his attorney, Talley, to file an appeal and could not demonstrate non-frivolous grounds for one. Although the court determined that Talley failed to consult with the Appellant about the implications of an appeal, it concluded that the Appellant did not prove he would have appealed had he been consulted, nor did he show the existence of non-frivolous grounds for appeal. The Appellant contested the district court's application of the "prejudice" component, arguing it did not adequately assess whether he "would have" instructed Talley to file an appeal. He claimed that a proper inquiry would have revealed a reasonable probability that he would have directed an appeal, thus alleviating the need to demonstrate additional prejudice. The court disagreed with this assertion.

The district court found that the appellant did not demonstrate a reasonable probability that he would have appealed if his attorney, Talley, had consulted with him, despite the appellant expressing an interest in an appeal. The appellant's burden was to show this probability, which he failed to do, and he did not provide evidence to challenge the district court’s conclusion that he did not meet this burden. Although he argued that the court placed undue emphasis on the merits of his potential appeal grounds, the precedent set in Flores-Ortega indicates that while a defendant need not show non-frivolous grounds for appeal, they must still provide evidence of a reasonable probability of pursuing an appeal. The district court correctly deemed the three grounds for appeal as frivolous. Specifically, concerning the Apprendi issue, the court stated that plea agreement facts can be used in sentencing. Additionally, the court found that the appellant's two New Jersey convictions were correct to be treated separately for sentencing purposes, as they were separated by an intervening arrest, which is consistent with the Sentencing Guidelines. Finally, the court dismissed the appellant's arguments regarding the suppression hearing, noting he did not justify the need for additional witnesses or explain why the magistrate judge's finding of voluntary consent to search was objectionable.

The district court's decision to deny Appellant's ineffective assistance of counsel motion was upheld, as the court found the motion lacked merit. Consequently, Appellant's arguments for a direct appeal and for amending his 2255 motion were deemed unnecessary to address. Appellant claimed ineffective assistance due to his counsel's failure to consult him about an appeal, but the court highlighted that the determination of whether this justified vacating a sentence hinges on the existence of non-frivolous grounds for appeal. Although the district judge did not permit formal amendments to the motion, he clarified that Appellant's potential non-frivolous issues could still be considered during the hearing on the merits of his motion.

The court affirmed that a "reasonable probability" must be shown that Appellant would have appealed had he been consulted. Relevant factors include whether the conviction resulted from a trial or guilty plea, the nature of the sentence received, and any express reservations of appeal rights. Appellant, having pleaded guilty and received a sentence within the allowable range while acknowledging his understanding of this range, failed to prove that he would have appealed. His assertion that any reasonable defendant would appeal a 30-year sentence was dismissed as self-serving and unconvincing given the overall context. Additionally, Appellant's claim of misunderstanding his rights to raise non-frivolous grounds at the 2255 hearing was found to lack merit, as he should have been aware of these rights. The order of the district court was thus affirmed.