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Reed v. United States

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

February 15, 2019

JEROME A. REED, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING § 2255 MOTION

          GREG KAYS, JUDGE UNITED STATES DISTRICT COURT

         This 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.

         Background

         On July 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 924(a)(2).

         Movant 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.

         On 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 the pills.

         On 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.

         On 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).

         Movant, 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.

         The 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 attorney (“Counsel”).

         Standard

         In a 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 (1984)).

         Where 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 ...


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