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Bryson v. United States

United States District Court, M.D. Florida, Orlando Division

August 16, 2017




         This cause is before the Court on the Motion to Vacate, Set Aside, or Correct Sentence (“Motion to Vacate, ” Doc. 1) filed by Petitioner pursuant to 28 U.S.C. § 2255. The Government filed a Response in Opposition to the Motion to Vacate (“Response, ” Doc. 4) in compliance with this Court's instructions and with the Rules Governing Section 2255 Proceedings for the United States District Courts. Petitioner filed a Reply (Doc. 5) and an Amended Reply (Doc. 9) to the Response. For the following reasons, the Motion to Vacate is denied.

         I. Procedural Background

         A Grand Jury charged Petitioner and two other individuals in a twenty-four count Indictment with the commission of various crimes. (Criminal Case No. 6:14-cr-84-Orl-31KRS, Doc. 1).[1] Petitioner entered into a Plea Agreement (Criminal Case Doc. 45) in which he agreed to enter a guilty plea to Count One of the Indictment (conspiracy to defraud the United States). Petitioner entered his plea before Magistrate Judge Karla R. Spaulding, who filed a Report and Recommendation Concerning Plea of Guilty (Criminal Case Doc. 51) recommending that the Plea Agreement and the guilty plea be accepted and that Petitioner be adjudged guilty and have sentence imposed accordingly.

         The Court then entered an Acceptance of Plea of Guilty and Adjudication of Guilt (Criminal Case Doc. 59) in which the guilty plea was accepted and Petitioner was adjudicated guilty of the offense. On December 9, 2014, the Court entered a Judgment in a Criminal Case (Criminal Case Doc. 94) in which Petitioner was sentenced to imprisonment for a term of 40 months, to be followed by supervised release for a period of two years. Petitioner did not file a direct appeal.

         II. Legal Standard

         Section 2255 permits a federal prisoner to bring a collateral challenge by moving the sentencing court to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). “A petitioner is entitled to an evidentiary hearing if he “alleges facts that, if true, would entitle him to relief.” Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (citation and quotation omitted). However, “a defendant must support his allegations with at least a proffer of some credible supporting evidence.” United States v. Marsh, 548 F.Supp.2d 1295, 1301 (N.D. Fla. 2008). The Court “is not required to grant a petitioner an evidentiary hearing if the § 2255 motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Rosin, 786 F.3d at 877 (citation and quotation omitted).

         III. Analysis

         A. Claim One

         Petitioner was represented by Stephen J. Langs. Petitioner contends that “he requested counsel to appeal and counsel refused to do so.” (Doc. 1 at 19). Petitioner states that counsel was ineffective because “[c]ounsel had a duty to pursue the Petitioner's Appeal rights upon Petitioner's request.” (Doc. 9 at 2). The Government submitted the affidavit of Langs, who stated that he discussed filing an appeal with Petitioner, that Petitioner “specifically” told him not to file a notice of appeal, and that, therefore, he did not file a notice of appeal “per [Petitioner's] direction.” (Doc. 4 at 38). Langs also submitted a letter he sent to Petitioner dated December 19, 2014, in which he confirmed Petitioner's decision not to pursue an appeal. (Id. at 53).

         It is well-settled that “a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (citations omitted). In such a case, prejudice is presumed, and the petitioner is entitled to a new appeal without showing that his appeal would likely have merit. See Id. at 483 (“The . . . denial of the entire judicial proceeding itself, which a defendant wanted at the time and to which he had a right, . . . demands a presumption of prejudice.”); Peguero v. United States, 526 U.S. 23, 28 (1999) (“[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.”); Rodriguez v. United States, 395 U.S. 327, 329-30 (1969) (finding that a defendant who instructed counsel to perfect an appeal thereby objectively indicated his intent to appeal and was entitled to a new appeal upon counsel's failure to perfect an appeal without any further showing).

         In addition to the duty to file a requested appeal, counsel must consult with a client about an appeal when either: (1) any rational defendant would want to appeal; or (2) the client reasonably demonstrated an interest in appealing. Flores-Ortega, 528 U.S. at 480. If a duty to consult exists, counsel must fulfill that duty by “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes.” Id. at 478; see also Devine v. United States, 520 F.3d 1286, 1288 (11th Cir. 2008) (noting “even if the client does not directly request an appeal, counsel generally has a duty to consult with him about an appeal.”). If counsel fails to satisfy the duty to consult, a petitioner is entitled to an out-of-time appeal only if he establishes prejudice by demonstrating “that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed.” Id. at 484.

         Petitioner was sentenced on December 8, 2014. Petitioner maintains that he requested his Langs to file an appeal and that the request was disregarded. It is undisputed that Langs did not file a notice of appeal on Petitioner's behalf.

         In his affidavit, Langs recounted pre-sentencing conversations with Petitioner regarding Petitioner's sentence and the possibility of appeal. (Doc. 4 at 37). Further, immediately after sentencing, Langs recalled discussing with Petitioner his appellate rights. (Id. at 38). Langs advised Petitioner against filing an appeal, and Petitioner was in agreement that he should not appeal his sentence. (Id.). ...

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