United States District Court, E.D. Louisiana
FINDINGS AND RECOMMENDATION
MICHAEL B. NORTH, Magistrate Judge.
This matter was referred to this Court to conduct an evidentiary hearing and to thereafter issue Proposed Findings and Recommendation to the District Judge concerning the specific question of whether Defendant requested that his counsel file a Notice of Appeal. (Rec. doc. 50). The Court has conducted such a hearing and hereby issues its Proposed Findings and Recommendation.
On October 4, 2012, Jason Long, Defendant herein, 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 a related criminal proceeding, No. 12-CR-116, Long 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). (Rec. doc. 1 in 12-CR-116). In that earlier criminal case, Federal Public Defender Virginia Laughlin Schlueter was appointed to represent Long on March 7, 2012. (Rec. doc. 9 in 12-CR-116). Ms. Schlueter was also appointed to represent Long in this instant case on October 10, 2012. (Rec. doc. 3). Subsequently, Federal Public Defender George Chaney, Jr. was also added to represent Long in both criminal cases. (Rec. doc. 4; rec. doc. 12 in 12-CR-116).
On April 25, 2012, in case No. 12-CR-116, Defendant pleaded guilty to count one pursuant to a plea agreement with the government. (Rec. doc. 17 in 12-CR-116). In the instant case, on October 24, 2012, Long pleaded guilty to count one, again pursuant to a plea agreement with the government. (Rec. doc. 11). In both plea agreements Long 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 in 12-CR-116; rec. doc. 20). On May 22, 2013, the District Judge sentenced Long to a total term of imprisonment of 480 months, apportioned as follows: (1) 360 months in this instant case on count one, with 120 months to run concurrently with the sentence in case No. 12-CR-116 and 120 months to run consecutively to the sentence imposed in case No. 12-CR-116 (rec. doc. 33); and (2) 240 months in case No. 12-CR-116 on count one with 120 months to run concurrently with the sentence imposed in the instant case and 120 months to run consecutively to the sentence imposed in the instant case. (Rec. doc. 55 in 12-CR-116).
On July 17, 2013, the District Judge received a letter from Long dated July 12, 2013, requesting that the Court appoint counsel, stating "I'm in need of another court appointed attorney to help me file my appeal." (Rec. doc. 34). An identical letter was also received in case No. 12-CR-116. (Rec. doc. 56 in 12-CR-116). Magistrate Judge Sally Shushan granted the request and appointed counsel in the instant case. (Rec. doc. 38). However, in case No. 12-CR-116, Magistrate Judge Joseph C. Wilkinson, Jr. denied the request to appoint counsel. (Rec. doc. 60 in 12-CR-116).
On May 20, 2014, Long filed a Motion to Vacate under 28 U.S.C. §2255, which the District Judge dismissed without prejudice on July 21, 2014 for failure to comply with Rule 2(b)(5) of the Rules Governing Section 2255 Proceedings. (Rec. docs. 40, 45). Long 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 on October 17, 2014, opposing Long's request for an out-of-time appeal but taking no position on movant's request for an evidentiary hearing. (Rec. doc. 49).
The present Motion contends: (1) that 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 Long 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.
The District Judge issued an Order and Reasons on November 3, 2014, referring to this Court for an evidentiary hearing the question of whether Long asked Chaney to file a Notice of Appeal, noting "there is no evidence in the record that supports movant's contention that he requested Mr. Chaney file an appeal, [nor is there] any proof negating movant's claim that he requested an appeal." (Rec. doc. 50 at p. 6). The District Judge denied the Motion in all other respects. ( Id. ).
II. THE EVIDENTIARY HEARING
This Court conducted an evidentiary hearing on the matter on January 6, 2015. (Rec. doc. 53). At that hearing, two witnesses testified and no documentary evidence was offered or accepted into evidence. Defense counsel called Long to testify and he did so telephonically. That testimony, while brief, nonetheless proved to be internally inconsistent on the specific question of whether Long requested that Chaney file a Notice of Appeal.
When first asked by his counsel if he remembered what transpired on May 22, 2013 (the date of his sentencing), Long testified that he asked Chaney whether he "needed to file an appeal for ineffective assistance of counsel...." (Tr. at p. 7). Notably, Long stated that Chaney "was not able to respond to me as they was calling me back downstairs to the holding cell so I did not get a response so I'm assuming, I assumed at the time that he was going to put one in for me." ( Id. ) (emphasis added).
A few moments later, Long provided a somewhat different version of the events:
Q: And could you just tell the Magistrate Judge specifically what the request you made to Mr. Chaney was ...