Nix v. United States

1

MARK NIX, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 3:15-CR-36-TAV-DCP, 3:17-CV-214-TAV-DCP

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

October 3, 2022

REPORT AND RECOMMENDATION

Debra C. Poplin, United States Magistrate Judge

United States District Judge Thomas A. Varlan has referred [Doc. 14] 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 June 8, 2022. Assistant United States Attorney Tracy Stone (“AUSA Stone”) appeared on behalf of the Government. Attorney Gerald Gulley Jr., (“Attorney Gulley”) 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 March 4, 2015, a federal grand jury filed a seven-count indictment charging Petitioner with money laundering conspiracy to distribute oxycodone, possession with intent to distribute oxycodone, and three counts of oxycodone distribution. United States v. Nix, No. 3:15-cr-36 [Doc. 3].^[2] On April 27, 2015, Petitioner appeared before the Court for his initial appearance/arraignment, and the Court appointed Attorney Loretta Cravens on his behalf. United States v. Nix, No. 3:15-cr-36 [Docs. 29 & 31].

On December 4, 2015, Petitioner and Attorney Cravens signed a Plea Agreement, whereby Petitioner agreed to plead guilty to Count One in the indictment, which charged conspiracy to distribute and possess with intent to distribute a mixture and substance containing a detectable amount of oxycodone, a Scheduled II controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). United States v. Nix, No. 3:15-cr-36 [Doc. 53 ¶ 1]. Paragraph 10 of the Plea Agreement provides, in relevant part, as follows:

10. 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 offense(s) committed, the defendant voluntarily, knowingly, and intentionally agrees to the following:

a) The defendant will not file a direct appeal of the defendant's conviction(s) 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. ¶ 10].

Petitioner proceeded before Judge Varlan on December 21, 2015, for his change of plea hearing [Doc. 22-1].^[3]During the change of plea hearing, Judge Varlan asked whether Petitioner understood paragraph 10 of the Plea Agreement [Id. at 12-13]. The following exchange occurred:

The Court: All right. Let's look now at your plea agreement. You understand paragraph ten in your plea agreement contained in provisions [sic] under which you are waiving the right to appeal or collaterally attack your sentence?

The Witness: I do.

The Court: Paragraph 10A provides that you agree not to file a direct appeal of your conviction or sentence. Do you understand that?

The Witness: I'm sorry. I didn't hear that one.

The Court: Okay. I'm, I'm looking at paragraph ten now and you can reference the plea agreement or just listen, but we established that your understanding that your plea agreement contained waiver provisions and I'm breaking that down now into several parts. First, paragraph 10A provides that you agree not to file any direct appeal here of your conviction or sentence. Do you understand that?

The Witness: Yes.

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

The Witness: I do.

The Court: And as part of this waiver, do you understand that you waive the right to appeal the Court's determination as to whether your sentence will be consecutive or partially concurrent to any other sentence?

The Witness: Oh, yes.

The Court: All right. Next paragraph 10B provides that 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?

The Witness: I do.

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 . . . [in]effective assistance of counsel or prosecutorial misconduct?

The Witness: I do.

[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 24].

On May 9, 2016, the parties executed an Amended Plea Agreement. United States v. Nix, No. 3:15-cr-36 [Doc. 76]. The Amended Plea Agreement is a copy of the original Plea Agreement with handwritten language that the parties added and initialed on May 9, 2016, stating Petitioner's base offense level was 34 based on the circumstances of the case [Id. at 2]. The Court sentenced Petitioner on May 9, 2016. United States v. Nix, No. 3:15-cr-36 [Doc. 92]. Attorney Cravens filed several objections to the Presentence Investigation Report (“Presentence Report”), but during the sentencing hearing, Attorney Cravens announced to the Court, “[Petitioner] has reviewed the [A]mended [P]lea [A]greement and in exchange for that recommended sentence of 198 months [Petitioner] is prepared to withdraw his objections to the Presentence Report.” [Id. at 4]. Petitioner testified that he had ample opportunity to discuss the Amended Plea Agreement with Attorney Cravens [Id. at 5]. Petitioner told the Court that he had no questions about his plea and that he was entering the Amended Plea Agreement voluntarily [Id. at 6, 7]. Petitioner further testified that he agreed to withdraw his objections to the Presentence Report [Id. at 7]. Judge Varlan specifically reviewed with Petitioner that his withdrawal of objections to the Presentence Report meant that “[Petitioner is] determined to be a career offender for sentencing calculation purposes,” and when Judge Varlan asked if he understood, Petitioner replied “Yes, sir.” [Id. at 14-15].

Judge Varlan explained to Petitioner that the Presentence Report stated his guideline range was 235 months to 240 months, but because of the Amended Plea Agreement, the new guideline range was 188 months to 235 months [Id. at 10]. Petitioner testified that he understood, and Judge Varlan asked if he needed more time to discuss the guidelines ranges with Attorney Cravens [Id.]. Petitioner responded, “No. I think we have pretty much got everything figured out” [Id.]. The parties agreed that 198 months would be an appropriate sentence for Petitioner [Id. at 11-12]. The Court sentenced Petitioner for a term of imprisonment of 198 months [Id. at 28]. Judge Varlan concluded the sentencing hearing as follows:

The plea agreement in this case is accepted. Counts 2 through 7 are dismissed.

Pursuant to Rule 32 of the Federal Rules of Criminal Procedure, the Court advises you may have the right to appeal the sentence imposed in this case.

Notice of appeal must be filed within 14 days of entry of judgment. If you request and so desire, the clerk of court can prepare and file a notice of appeal.

[Id. at 31].

On May 17, 2017, Petitioner filed his § 2255 Petition asserting two issues (1) whether his right to effective assistance of counsel was violated at sentencing when counsel failed to make meritorious arguments demonstrating that the Career Offender enhancement under U.S.S.G. § 4B1.1 did not apply to Petitioner, and (2) whether Petitioner's right to effective assistance of counsel was violated on direct appeal when counsel failed to consult with Petitioner concerning his right to appeal; failed to make a reasonable effort to discover Petitioner's desire to appeal; and failed to file a notice of appeal [Doc. 1]. The Court ordered the Government to respond to the Petition given that it was not plain on its face that it should be summarily denied [Doc. 2]. The Government responded that Petitioner failed to demonstrate that his counsel was ineffective for not objecting to his career-offender status and that Petitioner had not established that counsel was ineffective for not filing an appeal [Doc. 3 pp. 4-8]. In reply, Petitioner maintained that his right to effective assistance of counsel was violated at sentencing when counsel failed to appropriately object to the application of the career offender sentencing enhancement in his case [Doc. 4 pp. 24]. Petitioner also maintained that his right to effective assistance of counsel was...