United States District Court, W.D. Missouri, Western Division
JEROME A. REED, Movant,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING § 2255 MOTION
KAYS, JUDGE UNITED STATES DISTRICT COURT
habeas case arises out of Movant Jerome A. Reed's guilty
plea and 108-month sentence for being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1) and
924(a)(2). Pending before the Court is Movant's Motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (Doc. 1). On January
22, 2019, the Court heard evidence on Movant's argument
that his attorney was ineffective for not filing an appeal
when requested or consulting with Movant about an appeal.
Because Movant did not direct his counsel to file an appeal
and because his counsel did consult with him about an appeal,
the Court DENIES the motion and declines to issue a
certificate of appealability.
6, 2014, a federal grand jury indicted Movant, charging him
with one count of being a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g)(1) and
initially pled guilty pursuant to a binding plea agreement.
The Court held Movant's plea agreement while awaiting the
presentence investigation report (“PSR”). On
February 18, 2015, the Court informed Movant that, in light
of the PSR, the 72-month sentence in the plea agreement was
not befitting. The Court then rejected the binding plea
agreement, and Movant withdrew his plea of guilty.
September 17, 2015, Movant pled guilty without a written plea
agreement. An addendum to the PSR was filed, which contained
Reed's objection to the four-level enhancement for
possessing a firearm in connection with another felony
offense-possession of 27 Oxycodone pills, a controlled
substance, in an unlabeled prescription bottle. The Court
sustained the objection because Movant had a prescription for
September 30, 2015, the Court found Movant's Sentencing
Guideline range was from seventy to eighty-seven months'
imprisonment but then imposed an upward variance after
considering the sentencing factors under 18 U.S.C. §
3355(a). Ultimately, the Court sentenced Movant to 108
months' imprisonment followed by a supervised release
term of three years. The Court issued its final judgment on
October 2, 2015.
February 22, 2016, Movant filed an untimely pro se notice of
appeal, alleging his defense counsel (“Counsel”)
neglected to file a notice of appeal despite telling Movant
he would do so. The Eighth Circuit then appointed Counsel to
file a supplemental notice of appeal. Counsel did so,
observing that his notes and memories from the date of
sentencing did not reveal that his client had told him to
file a notice of appeal. Counsel also later filed a
substantive brief on behalf of Movant, arguing this Court
imposed an unreasonable sentence. The Eighth Circuit
dismissed the appeal as untimely. United States v.
Reed, 678 Fed.Appx. 457 (8th Cir. Mar. 1, 2017).
acting pro se, timely filed the pending § 2255 motion.
The motion alleges his attorney was ineffective for failing
to (1) file a notice of appeal and (2) discuss and consult
with him regarding an appeal.
Court held an evidentiary hearing on January 22, 2019, to
address Movant's arguments. See Witthar v. United
States, 793 F.3d 920, 923-24 (8th Cir. 2015). The Court
appointed counsel to represent Movant at the hearing. Movant
appeared and testified, as did Movant's former defense
proceeding brought under 28 U.S.C. § 2255, the district
court may “vacate, set aside or correct [a]
sentence” that “was imposed in violation of the
Constitution or laws of the United States.” To succeed
on a claim of ineffective assistance of counsel, a movant
must show “(1) trial counsel's performance was so
deficient as to fall below an objective standard of the
customary skill and diligence displayed by a reasonably
competent attorney, and (2) trial counsel's deficient
performance prejudiced the defense.” Armstrong v.
Kemna, 534 F.3d 857, 863 (8th Cir. 2008) (citing
Strickland v. Washington, 466 U.S. 668, 687-94
the alleged ineffective assistance of counsel involves
failing to file a notice of appeal, the Strickland
standard has been modified. “[C]ounsel's failure to
file a notice of appeal when so instructed by the client
constitutes ineffective assistance of counsel for the purpose
of § 2255.” Yodprasit v. United States,
294 F.3d 966, 969 (8th Cir. 2002) (internal quotations and
citation omitted). Where this occurs, prejudice is presumed,
so the Court need not conduct an ...