Livesay v. United States

1

JIMMY DEAN LIVESAY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 3:19-CV-390-TAV-DCP, 3:18-CR-36-TAV-DCP

United States District Court, E.D. Tennessee, Knoxville

August 3, 2023

REPORT AND RECOMMENDATION

Debra C. Poplin United States Magistrate Judge

United States District Judge Thomas A. Varlan has referred [Doc. 19] this matter to the undersigned for a report and recommendation regarding disposition of Petitioner's claim that his former counsel failed to file a requested appeal or failed to make a reasonable effort to discover Petitioner's desire to file an appeal.^[1] The undersigned conducted an evidentiary hearing on March 27, 2023. Assistant United States Attorney Samuel Fitzpatrick (“AUSA Fitzpatrick”) appeared on behalf of the Government. Attorney Ruth Thompson Ellis (“Attorney Ellis”) appeared on behalf of Petitioner, who was also present. For the reasons set forth herein, the Court RECOMMENDS that the District Judge DENY the sole remaining claim in Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (“§ 2255 Petition” or “Petition”) [Doc 1].

I. BACKGROUND

On June 5, 2018, Petitioner was initially charged in a superseding indictment with conspiracy to distribute 50 grams or more of methamphetamine [Case No. 3:18-cr-36 (“Crim Docket”), Doc. 24].^[2] On June 14, 2018, Petitioner appeared before the Court for his initial appearance/arraignment, and the Court appointed Attorney Russell T. Greene (“Attorney Greene”) on his behalf [Crim. Docket, Docs. 63, 68]. Subsequently, Petitioner was charged with the same offense in a second superseding indictment that was filed on August 8, 2018 [Crim. Docket, Doc. 154].

Prior to the filing of the second superseding indictment, Petitioner signed a Plea Agreement [Crim. Docket, Doc. 125]. Following the filing of the second superseding indictment, Petitioner signed a Second Amended Plea Agreement (the “Plea Agreement”) on August 15, 2018 [Crim. Docket, Doc. 160], whereby he agreed to plead guilty to Count One of the second superseding indictment, which charged conspiracy to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) [Id. ¶ 1].^[3] The Plea Agreement states that the punishment to which Petitioner would be exposed as a result of his guilty plea would be “a minimum mandatory term of imprisonment of ten years up to life” [Id.]. Paragraph 9 of the Plea Agreement provides, in relevant part, as follows:

9. The defendant acknowledges that the principal benefits to the United States of a plea agreement include the conservation of limited government resources and bringing a certain end to the case. Accordingly, in consideration of the concessions made by the United States in this agreement and as a further demonstration of the defendant's acceptance of responsibility for the offenses committed, the defendant voluntarily, knowingly, and intentionally agrees to the following:

a) The defendant will not file a motion for downward departure or variance or a direct appeal of the defendant's convictions or sentence with one exception: The defendant retains the right to appeal a sentence imposed above the sentencing guideline range determined by the Court or above any mandatory minimum sentence deemed applicable by the Court, whichever is greater. The defendant also waives the right to appeal the Court's determination as to whether the defendant's sentence will be consecutive or partially concurrent to any other sentence.

b) The defendant will not file any motions or pleadings pursuant to 28 U.S.C. § 2255 or otherwise collaterally attack the defendant's conviction(s) or sentence, with two exceptions: The defendant retains the right to file a § 2255 motion as to (i) prosecutorial misconduct and (ii) ineffective assistance of counsel.

[Id. ¶ 9].

Petitioner proceeded before Judge Varlan on September 4, 2018, for his change of plea hearing [Crim. Docket, Doc. 199]. During the change of plea hearing, Judge Varlan asked whether Petitioner understood paragraph 9 of the Plea Agreement [Crim. Docket, Doc. 762 pp. 8-9]. The following exchange occurred:

The Court: Next, I want to look at certain provisions of your plea agreement with you. First, do you understand, under Paragraph 3G, you are agreeing that - to be responsible for at least 50 grams but less than 150 grams of actual methamphetamine?

The Defendant: Yes, Your Honor.

The Court: Do you also understand - now I'm looking at Paragraph 9 - that your plea agreement contains provisions under which you are waiving the right to appeal or collaterally attack your sentence?

The Defendant: Yes, I am, Your Honor.

The Court: Paragraph 9A provides that you agree not to file a direct appeal of your conviction or sentence. Correct?

The Defendant: Correct, Your Honor.

The Court: And do you understand the only exception to this waiver of direct appeal is you retain the right to appeal a sentence imposed above the sentencing Guideline range determined by the Court or above any mandatory minimum sentence deemed applicable by the Court, whichever is greater?

The Defendant: Yes, Your Honor.

The Court: As part of this waiver, do you understand you're waiving the right to appeal the Court's determination as to whether your sentence would be consecutive or partially concurrent to any other sentence you might receive?

The Defendant: Yes, Your Honor.

The Court: Next, paragraph 9B provides you knowingly and voluntarily waive the right to file any motions or pleadings pursuant to 28 United States Code section 2255 or to collaterally attack your conviction or resulting sentence. Do you understand this?

The Defendant: Yes, Your Honor.

The Court: And do you understand the only exception to this waiver is you retain the right to raise by way of collateral review, under Section 2255, claims of ineffective assistance of counsel or prosecutorial misconduct?

The Defendant: Yes, I do, Your Honor.

[Id.]. After the Court explained the impact of Petitioner pleading guilty, Petitioner testified that he still wished to plead guilty in his case [Id. at 16].

Based on the drug quantity in the Plea Agreement, the presentence investigation report (“PSR”) calculated Petitioner's base level as 30 under U.S.S.G. § 2D1.1 [Crim Docket, Doc. 278 ¶ 72 SEALED]. However, the PSR reflected further adjustments based on Petitioner's career offender status under U.S.S.G. §4B1.1(b)(1), which increased the offense level to 37, and Petitioner's acceptance of responsibility, which then reduced the offense level to 34 [Id. at ¶¶ 78-81]. Based on a total offense level of 34 and Petitioner's calculated criminal history category of IV, the PSR calculated his sentencing guideline range as 262 to 327 months' imprisonment [Id. ¶ 122]. No objections to the PSR were filed [Crim. Docket, Docs. 284 & 293].

The Court sentenced Petitioner on April 17, 2019 [Crim. Docket, Doc. 559]. At the sentencing hearing, Petitioner testified that he understood the offense described in the Count One required a sentence of at least ten years' imprisonment, up to life [Crim. Docket, Doc. 820 p. 3]. Petitioner further testified that he understood that he was classified as a career offender under Section 4B1.1 of the Sentencing Guidelines and that such classification impacted the sentence he would receive [Id.]. Petitioner also confirmed the predicate offenses for his career offender status [id. at. 4-5], after which time, the Court announced its finding that he should be sentenced as a career offender [Id. at 5]. The Court then addressed the Government's motion for downward departure and granted the motion, taking into consideration Petitioner's substantial assistance [Id. at 12-13]. While noting the Government's recommendation of a four-level departure, which correlated to a low-end, revised guideline of 168 months, the Court went slightly beyond the recommendation and imposed a sentence of 165 months [Id. at 13]. After advising Petitioner that that he may have the right to appeal the imposed sentence, the Court instructed that a Notice of Appeal must be filed within fourteen days of entry of judgment and that Petitioner could request that the Clerk of Court prepare and file the notice [Id. at 16]. When provided the opportunity, Petitioner did not raise any objections to the pronounced sentence [Id.]. At the conclusion of the hearing, the Court specifically noted that because of Defendant's cooperation, he was given a significant reduction in his sentence of over eight years [Id. at 17].

On October 3, 2019, Petitioner filed his § 2255 Petition [Doc. 1], asserting several claims of ineffective assistance of counsel by Attorney Greene based on the following: (1) failure to advise Petitioner about the application of the Sentencing Guidelines or inform him of any potential sentence enhancement; (2) failure to review relevant information with Petitioner regarding the plea agreement; (3) failure to move to withdraw Petitioner's guilty plea; (4) failure to investigate; (5) failure to make objections to the PSR; and (6) failure to file a direct appeal. In a supplement filed on September 21, 2020 [Doc. 3], Petitioner raised additional claims of evidentiary and record errors. The Court denied all of Petitioner's claims, with the exception of Petitioner's claim regarding his request to file an appeal, which was referred to the undersigned for an evidentiary hearing [Doc. 19].

Petitioner contends that, at the conclusion of his sentencing hearing he immediately directed Attorney Greene to file an appeal, because his sentence was approximately twice what counsel had advised him, and Attorney Greene responded that he would “take care of [the] appeal” [Doc. 1 p. 5]. He maintains that several family members confronted...