United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RODNEY W. SIPPEL, District Judge.
This matter is before me on the motion of Sedaka Damon Betts under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence by a person in federal custody, and Betts' motion to appoint counsel. For the reasons stated below, I conclude that an evidentiary hearing and the appointment of counsel are required.
On April 19, 2012, Betts pled guilty in this Court to being a felon in possession of a firearm in violation of Title 18 U.S.C. § 922(g). On October 19, 2012, I sentenced Betts to a term of 90 months imprisonment with two years of supervised released. No appeal was filed.
On April 22, 2013, I received a letter from Betts, in which he complained that the Assistant United States Attorney ("AUSA") on his case had not filed a motion for reduction in sentencing under Rule 35(b) of the Federal Rules of Criminal Procedure as had been promised. Betts also wrote:
My attorney at my day of sentencing - took the appeal paper telling me he'd handle it only to duck and dodge my calls and letters, only to tell me 3 months after Oh, I forgot about it - plus you have no grounds to appeal anyway' then he went on to say just relax - you still got two Rule 35's coming from Tom Rea & Serena Wisler.
Betts' Letter at 2 (emphasis added). After I received the letter from Betts, I forwarded a copy of the letter to both the AUSA on the case and Betts' attorney. The record indicates that Betts' attorney filed a memorandum with the Court on May 23, 2013, in which he addressed some of the concerns raised by Betts in his April 22 letter. However, this memorandum is missing from the record, and it is unclear whether the attorney addressed the allegation that he did not file an appeal when instructed to do so.
On August 9, 2013, Betts sent me another letter, which stated in part as follows:
I've called [my attorney] over 50 times - He voicemailed me every time and I called Pre paid on my end. I wrote him 20 letters - He never responded... He failed to file my Appeal and never took my call after my sentencing but once then he was talking not about my appeal - but Tom Rea Ms. Wissler filing my motions after the holidays.
Id. Throughout the letter, Betts states that all of his phone calls with his attorney were recorded and that a review of the calls would support his allegations.
After reviewing the letter, I found that it would be more properly filed as a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 because Betts complained that his attorney failed to file an appeal on his behalf. Betts consented to construing his letter as a motion under 28 U.S.C. § 2255, and he filed an amended § 2255 on the Court-provided form.
In his amended § 2255 petition, Betts again claims that he asked his attorney to file an appeal after sentencing but no appeal was ever filed. He states that "I made it clear - I wanted to appeal, but my attorney did not comply with my wishes stating - He didn't because after the Christmas Holiday Serena Wessler/Tom Rea would file for my 2 Rule 35 motions - These calls are on recorded lines." Pet. at 11. He also states, "My attorney took the appeal form at sentencing then he never filed it - he wouldn't take my calls, respond to my letters, e-mails. He let the time expire." Id. at 3. Although Betts does not explicitly bring a claim for ineffective assistance of counsel based on these grounds, I will construe Betts' allegations as a claim that his attorney provided ineffective assistance of counsel for failing to file a direct appeal as instructed. See Jones v. Jerrison, 20 F.3d 849, 853 (8th Cir. 1994).
"A criminal defendant is entitled to effective assistance of counsel on a first appeal as of right." Estes v. United States, 883 F.2d 645, 648-49 (8th Cir. 1989) (internal citations omitted). "[C]ounsel's failure to file a notice of appeal when so instructed by the client constitutes ineffective assistance of counsel for purposes of section 2255." Id . (internal citations omitted); see also Williams v. Lockhart, 849 F.2d 1134, 1137 n. 3 (8th Cir. 1988) ("[D]eficient attorney ...