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Poole v. United States

United States District Court, W.D. Missouri, Western Division

July 27, 2017

TYWAN A. POOLE, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 13-00031-CR-W-FJG

          ORDER

          FERNANDO J. GAITAN, JR. United States District Judge.

         On December 7, 2015, Poole filed a Motion to Vacate, Set Aside or Correct his sentence (Doc. # 1). In his Motion, the only ground raised was that trial counsel was ineffective for failing to file a notice of appeal, despite his request that she do so. No other grounds for relief were asserted. On April 12, 2016, the Court issued an Order stating that an evidentiary hearing was necessary before issuing a ruling on movant's §2255 motion. The Court stated that counsel had been appointed to represent petitioner at the hearing. The Evidentiary Hearing was scheduled for June 29, 2016. On June 27, 2016, Poole's counsel filed a motion to continue the hearing stating that after meeting with Poole, it became apparent that he wished to raise several additional issues related to ineffective assistance of counsel and potentially other issues as well. Counsel requested an extension of time to file an amended §2255 motion. The Court will now consider Poole's Amended §2255 motion as well as the other pending motions: Motion to Terminate Counsel (Doc. # 30); Motion for Discovery (Doc. # 33); Motion for Extension of Time to File Reply (Doc. # 35); Motion to Vacate (Doc. # 38) and Motion for Summary Judgment (Doc. # 39).

         I. BACKGROUND

         On February 1, 2013, a grand jury returned a twelve count indictment against Poole. Poole was charged with conspiracy to distribute 100 grams or more of a mixture or substance containing a detectable amount of phencyclidine (PCP) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 846 (Count One); four counts of possession with intent to distribute 10 grams or more of a mixture or substance containing a detectable amount of PCP in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Counts Four, Seven, Ten and Eleven); three counts of possession with intent to distribute some amount of a mixture or substance containing a detectable amount of PCP in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Counts Two, Six and Nine) and four counts of knowingly possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Counts Three, Five, Eight and Twelve). A Superseding Indictment was filed on August 27, 2014, reducing Poole's charges to six counts. On October 3, 2014, Poole pled guilty to Counts One and Two of an Information charging him with possession with intent to distribute 10 grams or more of PCP, in violation of 21 U.S.C.§§ 841(a)(1) and (b)(1)(B) and being a drug user in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a), pursuant to a binding written plea agreement as per Rule 11(c)(1)(C). On July 16, 2015, in accordance with the plea agreement, Poole was sentenced to the agreed upon sentence of 96 months on Count One and 60 months on Count Two, to run concurrently, for a total sentence of 96 months. Poole did not file a direct appeal of his conviction or sentence. On December 7, 2015, Poole filed a pro se motion for post-conviction relief, asserting that his attorney was ineffective for failing to file a notice of appeal.

         II. STANDARD

         28 U.S.C. § 2255 provides, in part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         The district court must hold an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. “Accordingly, a claim may be dismissed without an evidentiary hearing if the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (citing Larson v. United States, 905 F.2d 218, 220-21 (8th Cir. 1990), cert. denied, 507 U.S. 919, 113 S.Ct. 1278, 122 L.Ed.2d 672 (1993)).

         Our analysis of the ineffectiveness claims is governed by Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to succeed on an ineffectiveness claim, Poole must show “both deficient performance by counsel and prejudice.” Id. at 687-88. In Johnson v. U.S., 860 F.Supp.2d 663 (N.D.Iowa 2012), the Court stated:

To establish deficient performance, a person challenging a conviction must show that “counsel's representation fell below an objective standard of reasonableness.” [Strickland], 466 U.S. at 688, 104 S.Ct. 2052. . . . The challenger's burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id., at 687, 104 S.Ct. 2052. Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011); Premo v. Moore, 562 U.S. 115, 121-122, 131 S.Ct. 733, 739, 178 L.Ed.2d 649 (2011) (quoting Richter). Also, the court “ ‘must “judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” ' ” King [v. United States, 595 F.3d 844');">595 F.3d 844, ] 852-53 (quoting Ruff v. Armontrout, 77 F.3d 265, 268 (8th Cir.1996), in turn quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). There are two substantial impediments to making the required showing of deficient performance. First, “ ‘[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.' ” United States v. Rice, 449 F.3d 887, 897 (8th Cir.2006) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Second, “[t]here is a ‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' ” Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052); Davis v. Norris, 423 F.3d 868, 877 (8th Cir.2005) (“To satisfy this prong [the movant] must overcome the strong presumption that his counsel's conduct fell within the wide range of reasonable professional assistance.”)

Id. at 741. In United States v. Orr, 636 F.3d 944 (8th Cir.) cert. denied, 865 U.S. 1063 (2011), the Court stated, “strategic choices made after a thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after a less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 952 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). However, as noted in Armstrong v. Kemna, 534 F.3d 857 (8th Cir. 2008), “[o]n the other hand, strategic choices ‘resulting from lack of diligence in preparation and investigation [are] not protected by the presumption in favor of counsel.'” Id. at 864-65 (quoting Kenley v. Armontrout, 937 F.2d 1298, 1304 (8th Cir.) cert. denied, 502 U.S. 964 (1991)).

         III. DISCUSSION

         A. Ground One - Failure to File Notice of Appeal In Witthar v. United States, 793 F.3d 920 (8th Cir. 2015), the Court stated:

[a]n attorney's failure to file a requested appeal automatically satisfies the deficient-performance prong of Strickland because it is professionally unreasonable. . . .This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel, and counsel's failure to file reflects inattention to the defendant's wishes. . . .And if an attorney fails to honor this request, the defendant forfeits her right to an appellate proceeding. . . .No showing of prejudice is required in this unique circumstance. . . .The court does not require an affirmative showing on the second prong of Strickland. Instead, prejudice is presumed.

Id. at 922-23 (internal citations and quotations omitted). The Court went on to note that “[w]hen a district court receives conflicting statements - one from a §2255 petitioner and one from her former counsel - the court cannot ‘mak[e] a factual determination based on the relative credibility of [these individuals] without the benefit of an evidentiary hearing.'” Id. at 923 (quoting Franco v. United States, 762 F.3d 761, 765 (8th Cir. 2014)).

         In the instant case, Poole alleged that his former counsel, Laine Cardarella “put off and totally disregarded my repeated efforts for counsel to provide a notice of appeal on my behalf. I further asked said counsel if I needed to file a notice of appeal pro-se or would she file a notice of appeal on my behalf?” (Doc. # 1). In opposition, the Government provided an Affidavit from Ms. Cardarella stating:

I specifically remember a conversation in which I advised Mr. Poole that he should not plead guilty at the district court in hopes of winning some appeal at the circuit court; he should try to win at the district court. Immediately prior to his sentencing hearing, Mr. Poole did ask me about an appeal. At sentencing, Mr. Poole received the agreed upon sentence of 8 years. Afterwards, we did not discuss an appeal. I have reviewed the letter which I sent to Mr. Poole on July 20, 2015. In the letter I reminded Mr. Poole that he has asked about an appeal before the sentencing hearing. I asked him if he wished for me to file a notice of appeal on his behalf, and if so to let me know in writing. In the letter, I advised Mr. Poole that I would be out of town but that I would direct my secretary to review my mail for letters from him and for any directive from him to file a notice of appeal. I have reviewed my file for any correspondence I received from Mr. Poole after July 20, 2015. I do not have any correspondence from him in which he directs me to file a notice of appeal. I do have a letter dated October 1, 2015 (received October 13) in which he asked for copies of several documents including docket sheets and transcripts. I provided to him everything that we had that I was able to send. In the letter, Mr. Poole asked if I would file a notice of appeal for him or if he would need to file it pro se. He acknowledged that we had spoken “previously while the notice to appeal was still valid.” I failed to answer his question about a notice of appeal in the response I sent on October 21, 2015 but I do know that by then any appeal was time barred.

(Doc. # 10-1, pp. 1-2). In the instant case, as there are conflicting statements between Poole and Ms. Cardarella regarding exactly what was said regarding filing a notice of appeal, the Court finds that an evidentiary hearing is necessary to resolve this issue.

         The Court will hold an evidentiary hearing on August 9, 2017 at 1:00 p.m.

         B. Ground Two - Destruction of Evidence

         Poole alleges that a backpack containing documents, contracts and music CD's related to his business as a music producer were seized by the Government. Poole states that he wanted to use these items in his defense to show that he is a legitimate businessman. Poole asked Cardarella to investigate and locate the backpack and its contents. He alleges that she shared with the prosecution his plan to use the backpack and its contents in his defense. He also argues that Cardarella failed to challenge the destruction of the backpack and its contents when it was discovered that the evidence had been destroyed. He also believes that the destruction of the evidence amounted to prosecutorial misconduct and he could have challenged the issue on direct appeal, but for counsel's failure to file a notice of appeal.

         In opposition, the Government provided a supplemental affidavit from Cardarella. In the affidavit, Cardarella states:

The police reports do indicate that a backpack was located in the rear of the vehicle and that it was inventoried. The inventory of the vehicle, when towed, does not include a backpack. I presumed, therefore, that the backpack was taken into evidence. When I went to the police department to review the evidence, I recall that there was no backpack. As I recall no one was able to tell me what happened to the backpack. I do recall Mr. Poole telling me that the backpack contained vials with perfume inside and flyers related to his entertainment production company. The lab reports indicate that the bottles in the backpack (which Mr. Poole told the police and me contained perfume) contained 44.52 grams of PCP. I did not file any pleadings related to the destruction of evidence. I am not sure what relevance the backpack itself had. The police report regarding the inventory of the backpack did not say anything about flyers, contracts, or music CDs. The report of Mr. Poole's statement immediately after his arrest does not mention that he said the backpack contained those items. I am not aware of any evidence other than Mr. Poole's statements to me that the backpack contained these items. I don't believe I would have had a meritorious motion to file regarding the destruction or loss of the backpack or how the destruction or loss of the backpack would have aided me in excluding from evidence the 44.52 grams of PCP that was found inside it.

(Doc. # 34-1). The Government states that even if Poole can show that the backpack and is contents were destroyed, he cannot show that his counsel's failure to challenge the destruction prejudiced his defense. The Government notes that Poole did not plead guilty to the April 17, 2012 incident that involved the backpack. The Government states that Poole would not have proceeded to trial on the April 17, 2012 incident if the backpack had been found, when instead he had the opportunity to enter into a plea agreement which completed avoided this incident. The Government also notes that the evidence of Poole's guilt was overwhelming. On April 17, 2012, the officers found 4 brown vials, 2 full of a liquid substance, 10 clear vials with a similar chemical smell and a prescription bottle with no label that contained 30 gel tablets inside. (PSR, ¶ 12). Additionally, the woman who officers found with Poole stated that “he had been selling PCP” for the last ten years and she witnessed him selling a gallon and a half that day. (PSR, ¶ 13). The Government argues that even if the music CD's, contracts and other items had been located, they would not have established Poole's innocence.

         In reply, Poole argues that: 1) Cardarella shared his plans with the Government to use the backpack and its contents in his defense; 2) failed to challenge the destruction of the backpack and its contents and 3) the Government acted improperly by failing to preserve the backpack and its contents. Poole alleges that he was denied due ...


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