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United States v. Bishop

United States District Court, N.D. Florida, Tallahassee Division

February 12, 2018



          GARY R. JONES United States Magistrate Judge

         This matter is before the court upon Petitioner Pedro Antwan Bishop's “Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody.” (ECF No. 315.) The Government filed a response (ECF No. 332) and Bishop filed a reply and sworn declaration in support. (ECF Nos. 338, 339.) The Court held an evidentiary hearing on February 8, 2018, and after reviewing the record and hearing the testimony presented at the hearing, hereby recommends that Ground One of Bishop's motion be granted and he be afforded an out of time appeal.


         Pedro Antwan Bishop pleaded guilty on July 25, 2013 to conspiracy to distribute five kilograms or more of cocaine and 280 grams or more of cocaine base (“Count One”) and distribution of twenty-eight grams or more of cocaine base (“Count Two”). (ECF Nos. 128-131.) The written plea agreement provided that due to a prior felony drug conviction, Bishop faced a minimum of twenty years' imprisonment up to a maximum of life on Count One, and a minimum of ten years' imprisonment on Count Two. (ECF No. 130 at 1-2.) The plea agreement was signed by both Bishop and his retained attorney David W. Collins, Esq.

         Bishop's Presentence Investigation Report (“PSR”) reflected a total offense level of 39 and a criminal history category of I. (ECF No. 192.) This was based on the probation officer's determination that the offense conduct involved 39.5 kilograms of powder cocaine and two kilograms of crack cocaine. (ECF No. 192, PSR ¶ 26.) The applicable guidelines range of 262 to 327 months was within the statutory range. (ECF No. 192, PSR ¶¶ 122, 123.)

         Sentencing occurred on January 14, 2014. At sentencing, the court found that Bishop should be held accountable for only thirteen kilograms of powder cocaine. (ECF No. 303 at 65, 68, 71.) The applicable total offense level was reduced to 35. The revised guidelines range of 168 to 210 months was trumped by the statutory mandatory minimum, thus yielding a guidelines range of 240 months. Counsel noted at sentencing that his client was the lone co-defendant who had not received the benefit of a § 5K1 motion, and that they were hoping that Bishop still might be considered for a Rule 35 motion after sentencing. (ECF No. 303 at 83.) The court sentenced Bishop to the mandatory minimum term of imprisonment. (ECF Nos. 247, 248; ECF No. 303 at 93-94.)

         Bishop did not appeal, and counsel's failure to appeal is one of the three grounds raised in the § 2255 motion currently at issue. Bishop also claims that counsel was constitutionally ineffective because he failed to convey a plea offer before the Government filed its notice of enhancement. He raised a third claim, that counsel failed to object to his enhanced sentence, but withdrew this claim in his reply. (ECF No. 338 at 3-4.) The Government opposes the motion.


          General Standard of Review

          Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to ' 2255 are extremely limited. A prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011).

         Ineffective assistance of counsel claims are generally not cognizable on direct appeal and are properly raised by a ' 2255 motion regardless of whether they could have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503 (2003); see also United States v. Franklin, 694 F.3d 1, 8 (11th Cir. 2012); United States v. Campo, 840 F.3d 1249, 1257 n.5 (11th Cir. 2016). To prevail on a constitutional claim of ineffective assistance of counsel, a defendant must demonstrate both that counsel's performance was below an objective and reasonable professional norm and that he was prejudiced by this inadequacy. Strickland v. Washington, 466 U.S. 668, 686 (1984). Because the court finds merit in Bishop's claim that his attorney was constitutionally ineffective because he either failed to file, or failed to consult with Bishop about, an appeal, this is the only claim that will be discussed herein. See McIver v. United States, 307 F.3d 1327, 1331 n.2 (11th Cir. 2002) (collateral claims should not be entertained while a direct appeal (here, a belated appeal) is pending).

         Ground One-Failure to Appeal

         Bishop's first claim for relief is that counsel was constitutionally ineffective because he did not file an appeal as instructed.

         Applicable Law Regarding Counsel's Duties with Respect to Appeal

         If a defendant specifically instructs his attorney to file a notice of appeal, a lawyer who disregards this instruction acts in a manner that is professionally unreasonable. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (citing Rodriguez v. United States, 395 U.S. 327 (1969); Peguero v. United States, 526 U.S. 23, 28 (1999)). Because a defendant whose lawyer fails to file an appeal upon request has been denied an entire judicial proceeding, prejudice is presumed and the defendant is entitled to a belated appeal. Id.; Gomez-Diaz v. United States, 433 F.3d 788, 792 (11th Cir. 2005).

         In cases where a defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, the question whether counsel has performed deficiently by not filing a notice of appeal is analyzed as follows:

[T]he question . . . is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal. We employ the term Aconsult" to convey a specific meaning - advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes. If counsel has consulted with the defendant, the question of deficient performance is easily answered; Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal. See supra 1034-1035. If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel's failure to consult with the defendant itself constitutes deficient performance.

Flores-Ortega, 528 U.S. at 478; see also Thompson v. United States, 504 F.3d 1203, 1207 (11th Cir. 2007). The Flores-Ortega Court rejected a bright-line rule that counsel must always consult with a defendant regarding an appeal:

We instead hold that counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known . . . .
Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings.

Id., 528 U.S. at 480; see also Devine v. United States, 520 F.3d 1286 (11th Cir. 2008) (finding counsel had no affirmative duty to consult with defendant about an appeal where defendant was sentenced at the bottom of the Sentencing Guidelines range after pleading guilty and waiving right to appeal); Thompson, 504 F.3d at 1208 (11th Cir. 2007) (defendant dissatisfied with perceived disparate sentence met burden of showing he would have wanted to appeal); Otero v. United States, 499 F.3d 1267 (11th Cir. 2007) (defendant who received sentence at low end of predicted guidelines range and had not expressed desire to appeal failed to show prejudice).

         In cases where a defendant has not specifically instructed his counsel to file a notice of appeal, a per se prejudice rule does not apply, rather, a defendant must demonstrate a reasonable probability exists that, but for counsel's deficient performance, he would have timely appealed. Flores-Ortega, 528 U.S. at 484, 486; Thompson, 504 F.3d at 1207. "Evidence that there were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination." Flores-Ortega, 528 U.S. at 485. However, "[b]ecause a direct appeal of a federal conviction is a matter of right, see Rodriquez v. United States, 395 U.S. 327, 329-30 (1969), we determine whether a defendant has shown that there is a reasonable probability that he would have appealed without regard to the putative merits of such an appeal." Thompson, 504 F.3d at 1208 (citing Flores-Ortega, 528 U.S. at 485-86; Gomez-Diaz, 433 F.3d at 793).

         In Thompson, in reviewing a claim that counsel had failed to consult with the defendant about his appeal, the district court found "[c]onsulting with [Thompson] for less than five minutes about his right to appeal does not equate to a failure to consult." 504 F.3d at 1207. On appeal, the Eleventh Circuit stated that the question of what equates to adequate consultation, however, is not one of duration, but of content. Id. It found that the content of the exchange in that case did not constitute adequate consultation because no information was provided to the defendant from which he could have intelligently and knowingly either asserted or waived his right to an appeal, and the record was clear that no reasonable effort was made to discover defendant's informed wishes regarding an appeal. Id. Under these circumstances, the court found that any waiver by the defendant of his right to appeal was not knowing and voluntary. Thompson, 504 F.3d at 1207.

         In Otero v. United States, 499 F.3d 1267, 1270-71 (11th Cir. 2007), the court found that counsel had not consulted with his client, when all discussions took place prior to sentencing. However, it found that no rational defendant in Otero's position would have sought to appeal in light of the broad appeal waiver, and because Otero did not communicate to his lawyer a desire to appeal, it concluded that counsel was not under a constitutional obligation to consult with his client about an appeal.

         The ...

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