United States District Court, Eastern District of Louisiana
ORDER AND REASONS
HELEN G. BERRIGAN, UNITED STATES DISTRICT JUDGE
This matter returns to the Court on movant’s Second Motion for Out-of-Time Appeal and Appointment of Counsel pursuant to 28 U.S.C. § 2255. Rec. Doc. 47. The government opposes. Rec. Doc. 49. For the following reasons, the Court will conduct an evidentiary hearing on the substance of movant’s ineffective assistance of counsel claim and deny the remainder of the motion.
I. Factual Background and Procedural History
On October 4, 2012, movant, Jason Long, was charged by a Bill of Information with one count of Sexual Exploitation of Children in violation of 18 U.S.C.§ 2251(b) and 18 U.S.C. §2253. Rec. Doc. 1. Previously on March 1, 2012, in the related criminal action no. 12-cr-116, movant was charged by the Grand Jury with one count of Receipt of Child Pornography, in violation of 18 U.S.C. §2256(2) and 18 U.S.C. §252(a)(2) and one count of Possession of Child Pornography, in violation of 18 U.S.C. §2256(2) and 18 U.S.C. §2252(a)(4)(B). No. 12-cr-116 Rec. Doc. 1. In case no. 12-cr-116, Federal Public Defender Virginia Laughlin Schlueter was appointed to represent movant on March 7, 2012. No. 12-cr-116 Rec. Doc. 9. Ms. Schlueter was also appointed to represent movant in this instant case on October 10, 2012. Rec. Doc. 3 Subsequently, Federal Public Defender George Chaney, Jr. was also added to represent movant in both criminal cases. On April 25, 2012, in case no. 12-116, movant pled guilty to count one with a plea agreement. No. 12-cr-116 Rec. Doc. 17. In the instant case, on October 24, 2012 movant pled guilty to count one with a plea agreement. Rec. Doc. 11. In both plea agreements movant agreed to waive his right to appeal his conviction, except for punishments exceeding the statutory maximum and to establish the unconstitutionality of his plea or waiver of the right to appeal. Rec. Doc. 14 at 3; No. 12-cr-116 Rec. Doc. 20 at 3.
On May 22, 2013, the Court sentenced movant to a term of imprisonment of 480 months: (1) 360 months in this instant case for count one, with 120 months to run concurrently to the sentence in case 12-cr-116 and 120 months to run consecutively to the sentence imposed in case 12-cr-116; Rec. Doc. 33; and (2) 240 months in case 12-cr-116 for count one with 120 months to run concurrently with the sentence imposed for the instant case and 120 months to run consecutively to the sentence imposed for the instant case. No. 12-cr-116 Rec. Doc. 55.
On July 17, 2013, the Court received a letter from movant dated July 12, 2013, requesting the Court to appoint counsel for purposes of appeal, which the Clerk treated as a Motion to Appoint Counsel. Rec. Doc. 34. An identical letter was also received in case 12-cr-116. No. 12-cr-116 Rec. Doc. 56. Magistrate Judge Sally Shushan granted the request and appointed counsel for the instant case. Rec. Doc. 38. However, in case 12-cr-116, Magistrate Judge Joseph C. Wilkinson, Jr. denied the request to appoint counsel. No. 12-cr-116 Rec. Doc. 60.
On May 20, 2014, movant filed a Motion to Vacate under 28 U.S.C. §2255 which this Court dismissed without prejudice on July 21, 2014 for failing to comply with Rule 2(b)(5) of the Rules Governing Section 2255 Proceedings. Rec. Docs. 40 and 45 at 4. Movant filed the instant Second Motion for Out-of-Time Appeal and Appointment of Counsel Pursuant to 28 U.S.C. §2255 on September 15, 2014. Rec. Doc. 47. The government filed a response October 17, 2014 opposing movant's request for an out-of-time appeal but took no position on movant's request for an evidentiary hearing. Rec. Doc. 49.
In the instant motion, movant contends: (1) that Mr. Chaney rendered ineffective assistance of counsel when he failed to file a notice of appeal despite movant's request that he do so; (2) that movant is entitled to an evidentiary hearing; and (3) that the court may choose to apply the "Judgment-Reinstatement" procedure to reset the time period in which to file an appeal instead of granting an out-of-time appeal.
A. Ineffective Assistance of Counsel
The Sixth Amendment entitles movant to the effective assistance of counsel at all critical stages of the criminal process. See, e.g., Lafler v. Cooper, 566 U.S. __, __, 132 S.Ct. 1376, 1385, 182 L.Ed.2d 398 (2012). To sustain a claim of ineffective assistance of counsel, a petitioner must show that (1) “counsel’s performance was deficient” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A court may consider the twin requirements of deficient performance and prejudice in either order; failure on one prong obviates the need to analyze the other. Id. at 697, 104 S.Ct. at 2069.
Deficient performance requires a showing “that counsel made errors so serious that counsel was not functioning as counsel guaranteed” by the Sixth Amendment and that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 687-688, 104 S.Ct. at 2064. Generally, to make such a showing, a defendant must “identify the acts or omissions alleged not to have been the result of reasonable professional judgment.” Id. at 690, 104 S.Ct. at 2066. A reviewing court must then determine whether the identified acts or omissions fell outside “the wide range of professionally competent assistance, ” while indulging “a strong presumption that counsel’s conduct falls within” that range. Id. at 689, 104 S.Ct. at 2065. A defendant must overcome “a strong presumption” that counsel’s conduct “might be considered sound trial strategy.” Id. (citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).
When the ineffective assistance of counsel claim is based upon counsel's failure to file a Notice of Appeal, the analysis of whether counsel's performance was deficient requires a slightly different showing. The filing of a Notice of Appeal is "a purely ministerial task" and not a decision considered to be strategic. Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 1036, 145 L.Ed.2d 985, 997 (2000). Additionally, it is well settled that an attorney who disregards specific instructions from his/her client regarding filing a Notice of Appeal is acting in a professionally unreasonable manner. See e.g. Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969). This is true ...