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United States v. Griffin

United States District Court, W.D. Louisiana, Lafayette Division

June 20, 2018

UNITED STATES OF AMERICA
v.
CARROLL GRIFFIN 01

          PATRICK J. HANNA MAG. JUDGE

          RULING

          TERRY A. DOUGPTY UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant Carroll Griffin's (“Griffin”) Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. No. 505]. The motion is fully briefed, and the Court is prepared to rule.

         I. FACTS AND PROCEDURAL HISTORY

         A grand jury in Lafayette, Louisiana, indicted Griffin on various drug trafficking charges as well as a charge related to firearms on February 8, 2016. Griffin entered a plea of guilty to conspiracy to distribute and possess with intent to distribute controlled substances on April 3, 2017, with retained counsel. The U.S. Probation Office's Presentence Investigation Report (“PSR”) calculated the applicable guidelines for Griffin's offense. This calculation included a specific offense characteristic for possession of a firearm and an adjustment for obstruction of justice due to Griffin's recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. This calculation yielded an advisory guideline range of 70 to 87 months incarceration. Griffin, through counsel, filed timely objections to the PSR. At the sentencing hearing held on September 22, 2017, the Court denied Griffin's objections to the PSR and sentenced him to 72 months incarceration, within the advisory guideline range, to be followed by 3 years of Supervised Release. Upon imposing the sentence, the Court advised Griffin of his right to appeal. Griffin did not file a notice of appeal.

         On January 22, 2018, Griffin filed a Motion to Vacate under 28 U.S.C. § 2255 (“2255 Motion”) [Doc. No. 505] alleging that his defense counsel, Mr. Alfred Boustany, II, (“Boustany”) was ineffective because, Griffin claims, defense counsel failed to follow Griffin's explicit instructions to appeal the sentence imposed.

         Griffin alleges in his 2255 Motion that prior to the sentencing, defense counsel assured him that if the district court failed to grant the objections to the PSR, defense counsel would appeal the objections. Griffin further alleges that, after the sentencing, defense counsel asked if Griffin wanted him to move forward with an appeal, stating that he preserved the record. Griffin asserts that he told his counsel that he wanted him to proceed with the appeal.

         Upon receiving Griffin's 2255 Motion, the Government requested and received an affidavit from Griffin's defense counsel, Mr. Boustany, addressing the allegations in Griffin's 2255 Motion. The affidavit contradicts Griffin's factual allegations. The affidavit states:

Prior to entering into a guilty plea, defense counsel explained to Griffin that if Griffin was not satisfied with the sentence, an appeal of the sentence was possible and that Griffin could have an attorney appointed if he (Griffin) could not afford the appeal. Defense counsel also explained to Griffin that the fee paid to defense counsel by Griffin for representation, including an unpaid balance written off by defense counsel, only covered defense counsel's services through the sentencing date.
On September 18, 2017, prior to sentencing, defense counsel discussed the sentencing hearing with Griffin and explained that he (Griffin) had a right to appeal. Defense counsel also explained to the defendant that if he chose to appeal that the defendant would have to sign another fee contract in order for defense counsel to pursue the appeal on the defendant's behalf.
On September 22, 2017, after the hearing, defense counsel explained to Griffin his right to appeal and explained that if Griffin could not afford an attorney for the appeal, the Court would appoint one to represent Griffin. During this conversation, Griffin told defense counsel that he (Griffin) did not want to appeal.
On September 25, 2017, defense counsel spoke to Griffin via telephone and again explained various issues regarding the possibility of an appeal including potential grounds for appeal, the time-period in which an appeal must be filed, and the possibility of court-appointed counsel for an appeal. During this conversation, Griffin told defense counsel that he (Griffin) would contact defense counsel should Griffin change his mind and decide to pursue an appeal.
Defense Counsel reported that “Griffin never indicated at any time that he wanted to appeal, he never signed another fee contract to appeal, and he never indicated that he wanted a court-appointed attorney to handle an appeal.”

         In light of these contradictory allegations, the Court scheduled an evidentiary hearing which took place in Lafayette, Louisiana, on June 19, 2018. Mr. Boustany testified that Griffin was free and not incarcerated until after his sentencing[1" name="FN1" id= "FN1">1]; that he and Griffin talked about Griffin's right to appeal on several different occasions, including before the day of his sentencing, on the day of the sentencing, and again a few days after the sentencing; that they discussed the fact that Griffin would owe Boustany additional attorney's fees if he wanted Boustany to handle his appeal; that he told Griffin he was entitled to a court-appointed attorney for his appeal if he could not afford one; and that they discussed the time limits for filing an appeal. Boustany testified unequivocally that Griffin never told him he wanted him to appeal, that Griffin never signed another fee contract to appeal, and that Griffin never indicated that he wanted a court-appointed attorney to ...


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