Racey v. United States

RAYMOND RACEY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 3:16-CV-619

No. 3:14-CR-89

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE

April 24, 2020

REEVES/GUYTON

MEMORANDUM OPINION

This matter is before the Court on Petitioner Raymond Racey's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 527; 3:16-CV-619, Doc. 1].¹ For the reasons that follow, Racey's § 2255 motion will be granted in part and denied in part.

I. Background

On July 16, 2014, Racey was indicted on various charges for his role in a seventeen-defendant methamphetamine manufacturing and distribution conspiracy. [Doc. 3]. CJA Panel Attorney Charles Poole ("Counsel") was appointed to represent Racey. [Doc. 56, 61].

On August 27, 2014, the government filed an "Information Alleging Prior Conviction Pursuant to 21 U.S.C. § 851." [Doc. 129 (correcting Doc. 127)]. The § 851 notice indicated that "on or about, January 7, 2011 (nunc pro tunc December 14, 2010), the defendant was convicted of Sale of Schedule II, a Class C felony, in violation of T.C.A. § 39-17-417, in case number 14326, in the Criminal/Circuit Court of Roane County, Tennessee" and included a copy of the judgment of the felony drug conviction. [Id.]. The § 851 notice also indicated that, as a result of the priorconviction, two of the charges in Racey's federal case carried "a minimum mandatory term of imprisonment of at least 20 years and not more than life imprisonment." [Id.]

On June 5, 2015, the government filed a "Notice of Factual Basis" and, on June 8, Counsel filed a "Notice of Intent to Change Plea." [Doc. 282, 285]. On June 11, 2015, Racey entered a guilty plea to three counts of the Indictment: (1) Count One, charging Racey with conspiracy to distribute fifty grams or more of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A); (2) Count Two, charging Racey with conspiracy to manufacture fifty grams or more of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A); and (3) Count Four, charging Racey with knowingly and intentionally possessing equipment, chemicals, products, and materials used to manufacture methamphetamine in violation of 21 U.S.C. §§ 843(a)(6), (d)(2). [Doc. 282, 288]. A Presentence Investigation Report was prepared reflecting the details of Racey's offense and background, as well as the sentencing impact of his prior conviction. [Doc. 384].

On October 15, 2015, the Court conducted Racey's sentencing hearing. At the hearing, Racey raised no objections to the Presentence Investigation Report. The Court specifically warned Racey about the sentencing impact of his prior conviction and asked if he affirmed the prior conviction, which he did. [Doc. 660, p. 5]. Ultimately, the Court sentenced Racey to 240 months' imprisonment followed by 10 years of supervised release—the statutory mandatory minimum sentence. [Doc. 426, 427]. Immediately after stating Racey's sentence, the Court advised him of his appellate rights. [Doc. 660, p. 29]. The Court then asked Counsel if there was anything further on Racey's behalf. [Id.]. Counsel asked the Court for a moment to discuss a matter with Racey, which the Court permitted. [Id. at 30]. After this discussion, Counsel stated, "Your Honor, my client has requested that the Court appoint the Federal Public Defender's office to represent him in any appellate proceedings." [Id.]. In response, the Court advised counsel that the "appointmentactually comes from the Court of Appeals, but he can be assisted in terms of filing the notice of appeal, and then the Court of Appeals will take over the process of appointing a Public Defender or an appropriate person to represent him on appeal." [Id.].

No notice of appeal was ever filed on Racey's behalf. On February 18, 2016, Racey, pro se, mailed a letter to the Court, inquiring into the status of his appeal. [Doc. 493]. Construing the letter as a motion for an extension to file a notice of appeal, the Court denied the construed motion because it was filed beyond the period allowable under Federal Rule of Appellate Procedure 4(b)(4). [Doc. 494].

On October 21, 2016, Racey filed a "Motion to Vacate, Set Aside, or Correct Sentence" under 28 U.S.C. § 2255. [Doc. 527]. Racey originally sought relief on three grounds for ineffective assistance of counsel: (1) that Counsel failed to file a motion to suppress evidence; (2) that Counsel failed to communicate a plea bargain counter offer to the Assistant United States Attorney during plea bargaining; and (3) that Counsel failed to file a direct appeal of the sentence despite a request to do so on the day of sentencing. [Id. at 4-7]. Racey sought to amend the motion, adding an additional argument: (4) that Amendment 794 to the United States Sentencing Guidelines provides a basis for a reduction in sentence. [Doc. 534].

The government responded, contending (1) that Counsel's failure to file a meritless suppression motion cannot constitute ineffective assistance; (2) that Racey has not established that counsel was ineffective with regard to plea negotiations; (3) that Racey has not established that counsel was ineffective for not filing an appeal; and (4) that Racey's supplemental motion was untimely and meritless. [Doc. 612, p. 4-9].

Racey replied, withdrawing the first and fourth grounds for relief and rebutting the government's arguments as to the second and third grounds. [Doc. 613, p. 4-7]. Racey persistedin his claims that Counsel provided ineffective assistance during the plea bargain process and by failing to file a direct appeal of his conviction and sentence. Id.

On April 22, 2019, this Court determined that Racey was entitled to an evidentiary hearing regarding the question of whether he instructed Counsel to file an appeal of his conviction. On June 21, 2019, the Honorable H. Bruce Guyton, Chief United Magistrate Judge, appointed attorney Ruth Ellis to represent Racey for these proceedings. [D. 18]. An evidentiary hearing was set, but Racey, through counsel, moved to continue the hearing [D. 23].

In the interim, a transcript of the sentencing hearing was filed, [Doc. 660], and the Court reviewed its recollections of the events of that proceeding. As a result, the Court has determined that an evidentiary hearing is no longer necessary, and the matter is ripe for adjudication.

II. Standard of Review

The relief authorized by 28 U.S.C. § 2255 "does not encompass all claimed errors in conviction and sentencing." United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, a petitioner must demonstrate "(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He "must clear a significantly higher hurdle than would exist on direct appeal" and establish a "fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

The Sixth Circuit has stated that unless the "record conclusively shows that the petitioner is entitled to no relief," an evidentiary hearing is typically "mandatory." Pola v. United States, 778 F.3d 525, 532-33 (6th Cir. 2015). However, that hearing is only necessary "where there is afactual dispute." MacLloyd v. United States, 684 F. App'x 555, 559 (6th Cir. 2017). Likewise, when the presiding judge also hears the collateral proceedings . . . that judge may rely on h[er] recollections of the trial in ruling on the collateral attack." Smith v. United States, 348 F.3d 545, 550-51 (6th Cir. 2003) (citing Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996)); see also MacLloyd, 684 F. App'x at 559 (stating that "a district court judge 'may rely on his or her recollections of the" proceedings when ruling on a § 2255 motion (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)).

III. Analysis

Through his § 2255 motion, Racey asks the Court to vacate his conviction, claiming ineffective assistance of counsel at the plea-bargaining stage and ineffective assistance of counsel for failing to file a direct appeal of his sentence and conviction. The Court finds that Racey is entitled to relief due to Counsel's failure to file a notice of appeal, but Racey's claim that Counsel was ineffective during the plea bargain process does not provide a basis for relief.

A. Failure to File a Direct Appeal

Racey claims that Counsel "failed to file [a] direct appeal after defendant requested counsel to the day of sentencing." [D. 527, p. 7]. Further, Racey contends that Counsel "never responded to any of defend[a]nts request[s] con[c]erning direct appeal" and disregarded letters, emails, and phone calls about the appeal. [Id.]. Likewise, Racey asserts that Counsel did not file an Anders brief showing that an appeal would be frivolous. [Id.].

The government argues that Racey's claim is contradictory. On one hand, Racey claims that Counsel failed to follow through with the requested appeal, yet also complains that Counsel "failed to consult with [Racey] when [counsel] should have known his client might want to appeal"the sentence. [Doc. 612, p. 5]. The government argues that this claim should be denied, but alternatively asserts that the Court could conduct an evidentiary hearing. [Id. at 6-7].

The Court will first address the need for an evidentiary hearing and then address the substance of the claim.

1. Evidentiary Hearing

The Court concludes that an evidentiary hearing is not necessary on this claim. Generally, a court should hold an evidentiary hearing "unless the motion can be 'conclusively determined either by the motion itself or by the files and records in the trial court." MacLloyd v. United States, 684 F. App'x...