United States District Court, D. South Dakota, Northern Division
MEMORANDUM OPINION AND ORDER DENYING MOTION TO VACATE
AND ORDER DENYING CERTIFICATE OF APPEALABILITY
CHARLES B. KORNMANN UNITED STATES DISTRICT JUDGE.
was charged in l:17-cr-10001-CBK with two counts of sexual
abuse of a person incapable of appraising the nature of the
conduct or physically incapable of declining participation
in, or communicating unwillingness to engage in a sexual act
in violation of 18 U.S.C. § 2242(2) and one count of
incest with his cousin in violation of SDCL § 22-22A-2.
He entered into a plea agreement wherein he agreed to plead
guilty to incest, which has a statutory maximum sentence of
five years imprisonment. He agreed to waive his statutory
right to appeal any non-jurisdictional issues but retained
his right to appeal the length of his sentence should the
Court impose an upward departure or variance. I determined
that the guideline range was 51-63 months. I thereafter
applied a downward variance pursuant to 18 U.S.C. §
3553(a) based upon the nature and circumstances of the
offense and sentenced the petitioner to 36 months
filed a motion to vacate, set aside, or correct his
conviction and sentence. He contends that he received
ineffective assistance of counsel in that he was not informed
that he agreed in the plea agreement to waive a direct
appeal. He further claims I applied an improper guideline.
Finally, he claims that the prosecutor committed misconduct
in failing to prosecute the other participant in the incest
crime and in filing charges based upon the statements of the
other participant who was intoxicated and had a memory lapse
concerning the offense. Petitioner contends that he did not
raise these issues on direct appeal because defense counsel
refused to file a notice of appeal.
conducted an initial consideration of the motion, as required
by Rule 4 of the Rules Governing Section 2255 Proceedings for
the United States District Courts. I summarily disposed of
petitioner's claim as to ineffective assistance
concerning the appeal waiver and his claim as to sufficiency
of the evidence. The remaining legal claims were required to
have been raised on direct appeal.
forth previously, petitioner contends that counsel was
ineffective in failing to file an appeal raising his
remaining issues. After cautioning petitioner that, if he is
successful in pursuing his petition, the government could
file a cross-appeal contending that I imposed an illegal
lenient sentence or the government could contend that he
breached the plea agreement and he could be subject to
prosecution on the more serious charges and receive a longer
sentence, petitioner indicated bis desire to proceed. The
government filed an answer and the affidavit of
petitioner's defense counsel. Because a factual issue
exists as to whether petitioner directed his counsel to file
a notice of appeal, an evidentiary hearing was held.
support a claim of ineffective assistance of counsel, a two
prong test must be met. "To succeed on this claim,
[petitioner] must show ineffective assistance-that
counsel's representation fell below an objective standard
of reasonableness." Wilcox v. Hopkins, 249 F.3d
720, 722 (8th Cir. 2001) (quoting Hill v. Lockhart,
474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).
Petitioner "must also prove prejudice by demonstrating
that absent counsel's errors there is a reasonable
probability that the result of the proceeding would have been
different." Delgado v. United States. 162 F.3d
981, 982 (8th Cir. 1998), (citing Strickland v.
Washington. 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80
L.Ed.2d (1984)); The burden of establishing ineffective
assistance of counsel is on the petitioner. Delgado v.
United States. 162 F.3d at 982. Petitioner
"'faces a heavy burden' to establish ineffective
assistance of counsel pursuant to section 2255."
DeRoo v. United States. 223 F.3d 919, 925 (8th Cir.
2000) (quoting United States v. Apfel, 97
F.3d 1074, 1076 (8th Cir. 1996)). "The Sixth Amendment
guarantees reasonable competence, not perfect advocacy judged
with the benefit of hindsight." Yarborough v.
Gentry. 540 U.S. 1, 8, 124 S.Ct. 1, 6, 157 L.Ed.2d 1
contends that counsel refused to file a notice of appeal on
his behalf. The United Sates Supreme Court has "long
held that a lawyer who disregards specific instructions from
the defendant to file a notice of appeal acts in a manner
that is professionally unreasonable." Roe v.
Flores-Ortega. 528 U.S. 470, 477, 120 S.Ct. 1029, 1035,
145 L.Ed.2d 985 (2000). "An attorney's failure to
file a requested appeal automatically satisfies the
deficient-performance prong of Strickland." Witthar
v. United States, 793 F.3d 920, 922 (8th Cir. 2015).
Further, no showing of prejudice is required under the second
prong on Strickland because prejudice is presumed in
this circumstance. Id. The Eighth Circuit extends
"the presumption of prejudice even to cases in which the
petitioner has waived [his] right to appeal."
Witthar v. United States. 793 F.3d at 923.
that petitioner has not met his burden of proof that he
directed counsel to file a notice of appeal immediately
following sentencing. Petitioner's testimony is not
credible in many respects. He claims that, based upon what
counsel told him, on the date of sentencing he believed he
would be sentenced to Probation or a custody sentence of a
few months in a county jail. This contention is contrary to
his prior sworn statements to me during his change of plea
hearing that no promises were made to him as to the length of
sentence he could expect. I carefully warned him that I could
sentence him up to five years custody and that any estimates
by anyone, including counsel, were not binding upon me. He
testified that he understood that. He was aware when he
signed the plea agreement that the government intended to
request a sentence of five years custody. He was aware prior
to sentencing that I had determined that his sentence would
be calculated pursuant to Guideline § 2A3.2, which may
result in a total offense level of 18. I determined at
sentencing that his total offense level should be 18 and,
with a criminal history category of V, his range was 51-63
months. The government had contended prior to sentencing that
his sentence should be calculated pursuant to Guideline
2A3.1, with a resulting range far exceeding the statutory
maximum sentence of five years. His claim that he was advised
that he could expect a probationary sentence is not credible.
His corollary claim that he therefore wanted to appeal the
lenient sentence of 36 months is also not credible.
rejecting petitioner's claim that he directed counsel to
file an appeal I also take into account that petitioner was
released following sentencing and had every opportunity to
notify the Clerk of Courts, his attorney, or the Court of his
desire to appeal. He did not do so. Counsel testified that
counsel advised petitioner that there was no basis for an
appeal. Petitioner admits that he was so advised. His claim
that he wanted to appeal and directed counsel to do so
despite his waiver of an appeal has no merit.
upon the foregoing, IT IS ORDERED that
petitioner's motion, Doc. 1, to vacate, set aside, or
correct sentence is denied.
THE UNITED STATES COURT OF APPEALS FOR ...