J. MICHELLE CHILDS, District Judge.
Before the court for review is Defendant Gerald Decosta Whaley's 28 U.S.C. § 2255 Motion to Vacate, filed on April 13, 2015. (ECF No. 252.) On November 13, 2017, the court granted the United States of America's (the "Government") Motion for Summary Judgment (ECF No. 268) and denied Whaley's Motion to Vacate. (ECF No. 284 at 2.) On August 6, 2018, the United States Court of Appeals for the Fourth Circuit vacated in part the court's November 13, 2017 Order and remanded the case for further proceedings. (ECF No. 292 at 3-4.) For the reasons set forth below, the court
On January 14, 2014, Whaley pled guilty to knowingly possessing firearms in furtherance of drug trafficking crimes. (ECF No. 66 at 4; ECF No. 209 at 1-2; ECF No. 213 at 1.) On April 30, 2014, the court sentenced Whaley to two hundred sixty-two (262) months of imprisonment and five (5) years of supervised release. (ECF No. 244.) On April 13, 2015, Whaley filed a Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 252.) Whaley's Motion presented three ineffective assistance of counsel claims: (1) "fail[ure] to file a direct appeal after being informed by [Whaley] to do so" (ECF No. 252-1 at 3); (2) "fail[ure] to file a motion to suppress evidence" (id. at 6); and
(3) "fail[ure] [at sentencing] to challenge and be objective to [Whaley]'s prior convictions" (id. at 8).
On November 25, 2015, the Government filed a Response in Opposition to Whaley's Motion, an affidavit by Whaley's trial counsel, Jeffrey P. Bloom, and a Motion for Summary Judgment. (ECF Nos. 267; 267-1; 268.) In Bloom's affidavit, he asserted that "[i]n preparing this Affidavit, and made pursuant to the [c]ourt's order, I reviewed some of my notes, my time-sheets, my computer case file, and some of my actual paper files in this case."
On January 13, 2016, in response to the Government's Motion, Whaley submitted his own affidavit. (ECF No. 271-1.) Whaley averred that he "informed [Bloom] at [s]entencing that [he] wished to file [a] direct appeal. Although counsel informed [him] that it would be done, [Bloom] never fulfilled his obligation." (Id. at 2 ¶ 2.) Prior to submission of his affidavit, on June 10, 2015, Whaley requested an evidentiary hearing on his Motion to Vacate. (ECF No. 261 at 1.) On September 8, 2016, the court denied Whaley's request. (ECF No. 277.)
On November 13, 2017, the court granted the Government's Motion for Summary Judgment and denied Whaley's Motion to Vacate. (ECF No. 284 at 2.) As to Whaley's claim Bloom was ineffective for failing to file an appeal after being directed to do so, the court found
(Id. at 8.) As to Whaley's other ineffective assistance of counsel claims, the court similarly found Whaley was unable to meet his burden under Strickland and denied Whaley a certificate of appealability. (Id. at 8-9.)
Whaley appealed the court's order to the Fourth Circuit. (ECF No. 287.) On August 6, 2018, the Fourth Circuit found that
(ECF No. 292 at 3.) As to Whaley's other claims of ineffective assistance of counsel, the Fourth Circuit denied Whaley a certificate of appealability and dismissed those claims. (Id. at 4.)
On March 5, 2019, the court held an evidentiary hearing on whether Bloom failed to appeal the criminal judgment as directed. (ECF No. 300.) At the hearing, both Whaley and Bloom testified. Whaley testified that it took some time for him to get to a point where he wanted to plead guilty and that based on his discussions with Bloom, he thought he was going to receive a fifteen-year sentence. (ECF No. 302 at 11:19-21, 12:11-14.) Whaley further testified that he had problems with (and did not at all like) his sentence of two hundred sixty-two (262) months because prior to that, "the most time [he] ever spent in jail was three [(3)] days." (Id. at 14:17-22, 15:1-7.) Because Whaley thought he had received too much time, he testified that he "wanted to challenge . . . the time itself, because I knew that I shouldn't have been . . . looking at that much time." (Id. at 15:8-19.)
Whaley also testified that he did not recall many things. For example, he did not recall his Presentence Report ("PSR") classifying him as a career offender and said that phrase did not "sound too familiar."
(ECF No. 302 at 50:7-22; ECF No. 303 at 3.) In the second letter from Bloom to Whaley, dated December 3, 2013—a little over one month before Whaley pled guilty—Bloom wrote:
(ECF No. 302 at 51:18-25, 52:1-18; ECF No. 303 at 6.)
Whaley also testified that he did not recall his plea agreement including an appeal waiver, though he did state that both Bloom and the court went over his plea agreement with him. (Id. at 15:20-21, 16:7-16.) But, on cross-examination, Whaley testified he did not remember Bloom going over the plea agreement with him. (Id. at 29:14-25.) Whaley further testified that he still would have wanted to challenge his sentence despite any appeal waiver. (Id. at 16:11-19.)
As to his discussions with Bloom about wanting to appeal his sentence, Whaley testified that after the court pronounced his sentence, he told Bloom "this can't be true, [he] kn[e]w this c[ould]n't be right. . . . [and] [he] . . . fe[lt] it was too much time." (Id. at 17:3-8.) Whaley also testified about whether he asked Bloom to appeal:
(Id. at 17:9-25, 18-21:1-3.) Whaley testified that about a month after he had been sentenced, because he had not heard anything about his appeal, he asked a woman he knew to call Bloom on his behalf. (Id. at 23:9-19.) This woman reported back to Whaley that Bloom said he was no longer Whaley's lawyer, which gave Whaley the impression Bloom had not filed an appeal on Whaley's behalf. (Id. at 23:21-25, 24:1-25.) Whaley testified that had Bloom told Whaley that Bloom was not going to file an appeal on his behalf, Whaley would have filed an appeal on his own and intends to file an appeal if granted the opportunity by the court. (Id. at 25:1-4, 26:9-12.) According to Whaley, he discussed with Bloom wanting to appeal his case in the event of a conviction throughout the process. (Id. at 25:11-18, 24-25, 26:1.) However, Whaley testified Bloom told him he did not believe there were any meritorious issues to appeal. (Id. at 25:19-23.)
During Bloom's testimony, he stated that he had practiced law for over thirty (30) years and had represented individuals charged with federal crimes for fifteen (15) years. (Id. at 57:24-25, 58:1-5.) Bloom testified that when he began representing Whaley,
(Id. at 60:4-10.) On direct examination, Whaley began by asking Bloom about the letters Whaley previously entered into evidence. But before addressing the substance of those letters, Bloom explained why the letters were unsigned:
(Id. at 61:2-18.) In discussing the letters, Bloom affirmed that he had been in negotiations with the Government about "potentially getting [Whaley's sentence] down into the teens, both with a[n] acceptance of responsibility downward departure as well as a possible Rule 35 and 5K1." (Id. at 64:3-18.) In another letter that Whaley presented to Bloom, dated November 12, 2013, Bloom wrote "I also estimate that based on `acceptance of responsibility' [Whaley] can earn a 3-level downward departure under the guidelines, moving your sentence into the `teens." (ECF No. 303 at 4.) As to this statement, Bloom testified
(Id. at 66:2-12.) As to Bloom's December 3, 2013 letter stating that "under the plea offer, the sentence starts, again under the Guidelines, around 21 years but then drops to around 15 years with `acceptance of responsibility.' [Whaley] could have a potential for a further downward departure from the prosecution, through a Rule 35 or 5K1 motion to under 12 years," (ECF No. 303 at 6), Bloom testified he disagreed that it was "reasonable for [] Whaley to believe he would have through acceptance of responsibility, received a sentence of around 15 years" and that he "may have worded that letter poorly." (ECF No. 302 at 69:21-25, 70:1.) Bloom further explained that at the time he wrote this letter, he was still engaged in plea negotiations with the Government. (Id. at 71:5-15.) Bloom also confirmed that throughout his representation of Whaley, he expressed that he believed he was facing too much time, which was reflected in Bloom's December 3, 2013 letter. (ECF No. 302 at 72:25, 73:1-11, 74:5-7; ECF No. 303 at 6.) According to Bloom, even after Whaley pled, he still did not believe his sentence was appropriate. (ECF No. 302 at 75:22-25, 73: 1-4.)
As to Bloom's discussion with Whaley about an appeal, Bloom testified as follows:
(Id. at 76:11-25, 77:1-18.)
Whaley asked Bloom about whether Whaley ever told Bloom that he wanted to appeal prior to sentencing. (Id. at 77:19-20.) Bloom testified that he did not recall any discussions to that effect but "[t]hey could have happened" and he
(Id. at 77:21-25, 78:1-17.) But, in a letter dated December 30, 2013, approximately two (2) weeks before Whaley pled guilty, Bloom addressed Whaley's statement during a December 17, 2013 meeting that "[Whaley] would get the case sent back on appeal." (Id. at 80:14-25; see also ECF No. 303 at 7.) Bloom testified that he agreed the December 30, 2013 letter reflects that Whaley had discussed appealing prior to sentencing, but that Bloom did not "have distinct recollections of that and I don't dispute that he may have brought that up on multiple occasions. It's obvious I reference that in [the letter] which is dated December 30, 2013." (Id. at 81:4-12.) Bloom further agreed that Whaley's statement that he planned on having his case "sent back on appeal" was an "unambiguous directive that [Whaley] was going to appeal." (Id. at 81:13-22.) However, Bloom stated he "remembered meeting with [Whaley] very distinctly the day after sentencing." (Id. at 77:16-17.)
On cross-examination, Bloom testified about how he prepared his affidavit in this case:
(Id. at 83:6-25.) The Government then asked, "is it clear that you used your actual physical file in the preparation of that affidavit," to which Bloom responded,
(Id. at 84:2-10.) When the Government asked Bloom if he would agree that his affidavit reflected that Whaley did not ask Bloom to file a direct appeal, Bloom testified that "[Whaley] never asked me to file an appeal on his behalf. . . . let me rephrase that, I'm sorry. . . . [Whaley] and I were in verbal agreement that I was not going to file an appeal." (Id. at 84:11-20.)
On redirect examination, Whaley asked Bloom whether his personal notes would have included notes from his meeting with Whaley on May 1, 2014, the day after Whaley was sentenced. (Id. at 89:2-3.) Bloom replied that he would have made notes about that meeting. (Id. at 89:4-5.) Bloom also admitted that his affidavit did not include a paragraph that stated Whaley verbally agreed to waive his rights to appeal during Bloom's meeting with him on May 30, 2014. (Id. at 89:9-19.) Bloom further admitted that his affidavit did not include a paragraph stating that Whaley instructed Bloom not to appeal during that meeting. (Id. at 89:20-22.)
A prisoner in federal custody may petition the federal court that imposed their sentence to vacate, set aside, or correct their sentence. 28 U.S.C. § 2255. Pursuant to 28 U.S.C. § 2255, a prisoner may be entitled to relief upon showing: (1) a sentence was imposed in violation of the Constitution or laws of the United States; (2) a federal court was without jurisdiction to impose a sentence; (3) a sentence was in excess of the maximum authorized by law; or (4) a sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A prisoner attacking a sentence, proceeding under § 2255, bears the burden of proving the grounds for attack by a preponderance of the evidence. See Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) ("Because proceeding under 28 U.S.C. § 2255 is a civil collateral attack upon the judgment of conviction, the burden of proof is upon petitioner to establish by a preponderance of evidence that he did not intelligently waive his right to assistance of counsel."). In ruling on a § 2255 motion, the court may dismiss the motion without a hearing when "it plainly appears from the motion, any attached exhibits, and the record of prior proceedings, that the moving party is not entitled to relief . . . ." Rules Governing Section 2255 Proceedings 4(b). See also U.S.C. § 2255(b) ("Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing there on . . . .").
The court is required to interpret pro se documents liberally and will hold those documents to a less stringent standard than those drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed pro se is `to be liberally construed,'" and "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Additionally, pro se documents must be construed in a manner, "no matter how inartfully pleaded, to see whether they could provide a basis for relief." Garrett v. Elko, No. 95-7939, 1997 WL 457667, at *1 (4th Cir. Aug. 12, 1997).
In the Fourth Circuit's Order remanding this case, the court observed that "the success of [Whaley's] ineffective assistance claim ultimately hinges on a credibility determination." (ECF No. 292 at 3.) Unfortunately,
John L. Kane, Judging Credibility, 33 No. 3 LITIG 31, 31 (2007). Given the "un-ruly" nature of making credibility determinations, it is "peculiarly the province of the [district court], who saw and heard the witnesses," to make such determinations. Safeway Trails v. Allentown & Reading Transit Co., 185 F.2d 918, 920 (4th Cir. 1950).
On March 5, 2019, the court saw and heard both Whaley and Bloom testify about whether Whaley instructed Bloom to file an appeal on his behalf. (ECF No. 300.) At the outset, the court recognizes that the events and conversations at issue occurred in April and May of 2014, over five (5) years ago. Thus, it is no surprise that both Whaley and Bloom do not recall certain details of their interaction. Whaley's testimony indicates he recalls less than Bloom, and Whaley was inconsistent on what he did recall. For example, Whaley testified both that Bloom did not discuss with him the possibility of a two hundred sixty-two (262) month sentence, and that after the court informed Whaley he was facing a possible a two hundred sixty-two (262) month sentence at Whaley's change of plea hearing, Bloom then discussed with him the possibility of a two hundred sixty-two (262) month sentence. (ECF No. 302 at 14:1-5, 39:5-11, 42:4-7.) Whaley's testimony that Bloom did not discuss this sentence with him is belied by letters Bloom sent to Whaley, which memorialized their conversations about the possibility of a two hundred sixty-two (262) month sentence. (ECF No. 303 at 3, 4, 8.) But, part of Whaley's testimony was also confirmed by letters from Bloom. Whaley testified that he believed he was going to receive a fifteen-year sentence based on conversations with Bloom. (See, e.g., ECF No. 303 at 12:11-14, 39:5-11; 41:4-7.) On at least two separate occasions, Bloom wrote to Whaley that he could receive a fifteen to twelve-year sentence if he accepted responsibility and/or agreed to be interviewed by the Government. (ECF No. 303 at 3, 6.)
Bloom did not recall Whaley ever expressing a desire to appeal in the event of an adverse outcome, though he did not dispute Whaley could have done so.
While this testimony does not answer the dispositive question in this case, it illuminates the difficulty of the credibility determination facing the court. The testimony on the dispositive question of this case, at first glance, appears to be a classic case of he-said, he-said. Whaley maintains that on the day after he was sentenced, when Bloom came to visit Whaley at the LCDC, he directed Bloom to file an appeal on his behalf and Bloom agreed to do so. (See, e.g., at 17:9-21, 18-21:1-3, 25:5-10, 26:2-8.) However, Bloom maintains that on the day after Whaley was sentenced, when Bloom went to visit Whaley at the LCDC, they agreed to not file an appeal. (See, e.g., at 76:22-25; 77:1-2, 77:15-18.) What tips the preponderance scale in Whaley's favor, and moves this case beyond Whaley's words versus Bloom's, is Bloom's affidavit and his testimony about how he prepared that affidavit.
In response to Whaley's § 2255 Motion, the Government filed an affidavit by Bloom. (ECF No. 267-1.) Bloom's affidavit does not address whether or not Whaley told Bloom to file an appeal and also does not state that Whaley agreed not to file an appeal. (See id.) These omissions are particularly telling for two reasons. First, Bloom's affidavit was made in response to Whaley's § 2255 Motion. In that Motion, Whaley specifically asserts that he told Bloom to file an appeal and that Bloom agreed to do so, but never did. (ECF No. 252-1 at 3, 5-6.) Thus, Bloom had to be aware of Whaley's allegation when he prepared his affidavit, as Whaley's § 2255 Motion was the impetus for the affidavit. Therefore, the silence of Bloom's affidavit as to whether Whaley instructed him to file an appeal is curious at best.
Second, at the evidentiary hearing, Bloom testified that it was "clear" to him that he prepared his affidavit using his handwritten notes. (ECF No. 302 at 82: 2-10.) Bloom also testified that he would have made notes about his meeting with Whaley at the LCDC on May 1, 2014, the day after Whaley was sentenced, during which both Bloom and Whaley testified they discussed an appeal. (Id. at 89:2-5.) However, even though Bloom testified that he "had [his] handwritten notes with [him]" when he prepared his affidavit, his affidavit does not answer whether Whaley instructed him to file an appeal. (Id. at 83:8-10.) What is more, Bloom's affidavit also does not reflect his evidentiary hearing testimony that Whaley agreed with Bloom not to file an appeal. (See ECF No. 267-1.) Bloom's affidavit states only that he went to the LCDC the day after Whaley was sentenced and discussed the appellate waiver in Whaley's plea deal. (Id. at 3 ¶ 9.) At the evidentiary hearing, Bloom could not explain why his affidavit was silent as to whether Whaley instructed him to file an appeal and whether Whaley agreed not to file an appeal. (ECF No. 302 at 89:9-22.) But, only a few explanations are possible. If Bloom in fact used his notes to prepare his affidavit, than this silence suggests that Bloom's handwritten notes did not state either that Whaley directed Bloom to file an appeal or that Whaley agreed not to file an appeal. Bloom simply, and innocuously, may have just failed to notate this part of his discussion with Whaley, though, again, that seems curious given that he must have notated that he discussed Whaley's sentence and the appellate waiver in Whaley's plea agreement. (ECF No. 267-1 at 3 ¶ 9.) Why would Bloom make a note about discussing the appellate waiver with Whaley but not note that Whaley agreed to not file an appeal? While there are other possible nefarious explanations for why Bloom's affidavit does not speak to the dispositive question despite using his handwritten notes to prepare the affidavit, nothing in the record leads the court to believe Bloom would engage in such a manner. And the court is only bound by a preponderance of the evidence standard of review, meaning it can decide this case without determining what Bloom's handwritten notes actually showed.
In the end, Bloom's own documents, his letters and affidavit, are what tip the scale of preponderance in Whaley's favor. Bloom's letters to Whaley confirmed Whaley's testimony that Bloom told him he could receive a fifteen-year sentence and that he told Bloom he wanted to appeal before he was sentenced, lending credibility to Whaley's testimony.
Because Bloom's failure to file a notice of appeal "`depriv[ed] [Whaley] of an appeal that he otherwise would have taken, [Whaley] has made out a successful ineffective assistance of counsel claim entitling him to an appeal,' with no need for a `further showing' of his claims' merit, regardless of whether [Whaley] has signed an appeal waiver." Garza v. Idaho, 139 S.Ct. 738, 747 (2019) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000)). Therefore, the court will vacate the original judgment against Whaley and enter a new judgment from which he can appeal. See United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993) ("[W]e . . . hold that a criminal defense attorney's failure to file a notice of appeal when requested by his client deprives the defendant of his Sixth Amendment right to the assistance of counsel, notwithstanding that the lost appeal may not have had a reasonable probability of success. The judgment is reversed, and the case is remanded with instructions to vacate Peak's judgment of conviction and enter a new judgment from which an appeal can be taken.").
The court
