This case involves a motion to vacate, set aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 1) filed by Tramaine Anton Hibbert. On July 15 and August 8, 2011, the Court conducted an evidentiary hearing on whether counsel failed to file a notice of appeal after Petitioner asked him to do so. The Court further heard argument as to the remaining issue of whether the Government breached the plea agreement by failing to contact the State Attorney's Office. After consideration of the testimony and the law, claims one and two are denied.
Petitioner was charged in a four-count indictment with: (1) conspiracy to possess with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii) and 846; (2) possession with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii) and 18 U.S.C. § 2; (3) possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (4) knowingly possessing a firearm in furtherance of the drug trafficking offense charged in Count I, in violation of 18 U.S.C. §§ 924(c) and 2. (Criminal Case No. 6:08-cr-247-Orl-19GJK, Doc. No. 1)*fn1 Petitioner entered into a written plea agreement and pled guilty to Counts I, III, and IV of the Indictment. (Criminal Case Doc. Nos. 45 & 46.) The Court accepted the plea and adjudicated Petitioner guilty as to Count I, III, and IV. (Criminal Case Doc. No. 59.)
On December 15, 2009, a sentencing hearing was conducted, and Petitioner was sentenced to a term of 120-months imprisonment on Count I, a term of 120-months imprisonment on Count III, all such terms to run concurrent, and a term of 60-months imprisonment on Count IV, such term to run consecutive to the sentences for Counts I and III. (Criminal Case Doc. No. 69 at 2.) Count II was dismissed pursuant to the plea agreement. (Id. at 11.)
At the sentencing hearing, the Court orally explained to Petitioner his right to appeal, (Doc. No. 7-2 at 14-15), and Petitioner signed a written Acknowledgment of Right to Appeal confirming his understanding of the right to appeal, the ten-day deadline for appealing, and the steps for taking an appeal. (Criminal Case Doc. No. 68.) On January 12, 2010, the Court entered an Order ("Ten Day Order") noting that ten days had elapsed since the entry of judgment and that no notice of appeal had been filed. (Criminal Case Doc. No. 70.) The Ten Day Order directed Petitioner to file within ten days a declaration stating whether the election not to file a notice of appeal was informed and voluntary. (Id.) The Ten Day Order further stipulated that failure to respond as directed would be deemed an acknowledgment by Petitioner that the decision not to appeal was an informed and voluntary choice. (Id.) Petitioner did not file a declaration pursuant to the Ten Day Order.
On December 10, 2010, Petitioner timely filed a motion to vacate, set aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255, asserting that trial counsel rendered ineffective assistance by failing to object to the Government's alleged breach of the plea agreement and by failing to file a notice of appeal upon Petitioner's request. (Doc. No. 1.)The Government filed a response in opposition, (Doc. No. 7), and Petitioner filed a reply to the response (Doc. No. 9), and an affidavit in support of his Motion (Doc. No. 10).
On May 23, 2011, the Court entered an order concluding that counsel satisfied the duty to consult with Petitioner about appealing to the extent such duty existed. (Doc. No. 13 at 9-10.) The Court reserved ruling on Petitioner's remaining claims pending an evidentiary hearing on Petitioner's claim that trial counsel rendered ineffective assistance by failing to file a notice of appeal as requested by Petitioner. On July 15 and August 8, 2011, the Court conducted evidentiary hearings on the claim.
II. July 15 and August 8, 2011 Evidentiary Hearings
Petitioner testified that at the time he entered his plea in this Court, he had a state charge pending in Brevard County, Florida for possession of a firearm by a convicted felon. (Doc. No. 27 at 11.) According to Petitioner, Edwin Ivy ("Ivy"), his attorney in his federal case, told him that if he entered a plea in this Court, the state charge would be dropped.
Petitioner testified that he told Ivy prior to his sentencing hearing that his state charge remained pending. Id. at 14. Petitioner said that Ivy spoke to Assistant United States Attorney ("AUSA") Emmett Jackson Boggs who said that he had contacted the state attorney about the pending state charge and was waiting on a response. Id. at 14-15. Petitioner stated that he believed that the state charge was going to be dropped based on his conversation with Ivy at the sentencing hearing. Id. at 16-17. However, Petitioner acknowledged that he knew that AUSA Boggs had stated at the plea hearing that he could not make the State drop the charge against him. Id. at 16.
Petitioner affirmed that he was advised of his right to appeal after he was sentenced and that he did not ask Ivy to file an appeal on that date. Id. at 17. Petitioner maintained, however, that he called Ivy and sent Ivy a letter within the ten-day appeal period wherein he requested Ivy to file an appeal. Id. at 18-19. Petitioner also testified that he met with Ivy at the jail between January 1 and 6, 2010, within the ten-day appeal period, raised the matter of his still pending state charge, and requested Ivy to file an appeal. Id. at 18. Petitioner said that Ivy told him that he would speak to AUSA Boggs regarding the state charge. Id. at 20. Petitioner testified that he never heard anything further from Ivy after the meeting at the jail. Id.
Petitioner said that he received an order from the Court advising him that ten days had lapsed and no notice of appeal had been filed. Id. at 22. Petitioner maintained that he received the order approximately two days before he spoke to Ivy at the jail. Id. at 22-23.
Petitioner stated that he went to federal prison after he was sentenced and was brought back to Brevard County in April 2010 for his state criminal proceeding. Id. at 24-25. Petitioner testified that he had an attorney in his state case and he advised his attorney that he had entered a plea in the federal court. Id. at 25. Petitioner further admitted that he told the state prosecutor about his federal plea to which the state prosecutor responded that he knew about Petitioner's federal plea, that the state charge was filed first, and the state planned to prosecute it. Id. at 25-26.
Petitioner said that he did not ask his attorney in his state case to contact AUSA Boggs regarding his federal plea, although he wanted his attorney in his state case to pursue the Government's promise to contact the state attorney. Id. at 27-28. Nevertheless, he subsequently told his attorney to drop the matter and decided to enter a plea in the state case so that he could receive a concurrent sentence to his federal sentence and return to federal prison. Id. at 28.
Ivy testified that he discussed with Petitioner the matter of filing an appeal before Petitioner entered the plea. Id. at 31. Ivy stated that he reviewed with Petitioner the appeal rights he was giving up by entering the plea and he told Petitioner that he would have ten days to file an appeal after he was sentenced. Id. at 32. Ivy maintained that on the date Petitioner was sentenced, after the sentence was imposed, he advised Petitioner that he did not think there were any issues to appeal and asked Petitioner if he wanted to appeal. Id. at 32-34. Ivy said that Petitioner told him he did not want to appeal any matter. Id. at 32.
Ivy testified that he did not receive a letter or call from Petitioner after he was sentenced. Id. at 35. Ivy also did not recall meeting with Petitioner at the jail after he was sentenced and was almost certain that he did not do so. Id. Ivy maintained that he was certain that he did not speak to Petitioner after the Order was issued regarding the lapse of the ten-day appeal period. Id.
Ivy noted that he likely would have submitted a CJA voucher for billing purposes had he met with Petitioner at the jail. Id. at 41-42. A CJA bill was entered into evidence, which showed that Ivy signed the CJA voucher on December 28, 2009, and the form was received by the Court on the same day. The CJA form did not include a bill for a visit to the jail. However, the CJA voucher was dated prior to the time period in which Petitioner contended that Ivy visited him at the jail. See Doc. No. 25.
Ivy testified that he later spoke with Petitioner's state attorney and advised the attorney to contact AUSA Boggs regarding the plea. Id. at 40- 41. Ivy maintained that Petitioner's attorney said that Petitioner had decided to enter a plea on the state charge in order to receive a concurrent sentence. Id. at 41. As such, the attorney in ...