REPORT AND RECOMMENDATION

G. R. SMITH, Magistrate Judge.

Maurice Bernard Young has filed a motion under 28 U.S.C. § 2255 seeking to vacate his conviction and sentence on the ground that his defense attorney provided ineffective representation. Specifically, he says that his attorney was deficient both in failing to challenge his status as an armed career offender under 18 U.S.C. § 924(e), and in failing to consult with him about an appeal or comply with his request that an appeal be filed. Does. 1 & 2. As to the latter claim, the government conceded in its response that an evidentiary hearing was required to resolve disputed factual issues, as Young's defense attorney had asserted that he not only consulted with Young about an appeal but "encouraged" him to appeal once Young indicated that he did not wish to do so. Doc. 5-1 (Martin G. Hilliard aff.). The Court agreed with the government's assessment that a § 2255 hearing was necessary and appointed counsel to represent Young at that hearing. As Young has failed to establish that he is entitled to an out-of-time appeal, the Court must proceed to address all grounds for relief asserted in his motion.

Shortly before his scheduled trial on drugs and firearms charges in United States v. Young, No. CR410-44 (filed Feb. 3, 2010),1 Young pled guilty to possessing a firearm as a felon pursuant to a plea agreement that exposed him to a statutory minimum sentence of 15 years because he qualified as an armed career criminal under 18 U.S.C. § 924(e). Cr. doc. 36 (plea agreement). That statute provides that a person convicted of possessing a firearm as a felon who "has three previous convictions. for a violent felony or a serious drug offense ... shall be ... imprisoned not less than fifteen years. ..." 18 U.S.C. § 924(e)(1). In the Presentence Investigation Report ("PSI"), the probation officer determined that Young had four qualifying convictions under the statute and calculated an advisory guidelines range of 180 to 210 months. PSI ¶¶ 19, 53. Young did not object to the probation officer's calculations, which were adopted by the district judge at sentencing. Sent. Hrg. Tr. (Cr. doc. 42) at 4. The Court sentenced Young to the mandatory minimum prison term of 180 months (15 years). Id. at 5. Young did not file an appeal.

I. Young has no right to an out-of-time appeal

The Court scheduled an evidentiary hearing to resolve a factual dispute as to whether Young's defense attorney ever consulted with him about an appeal (Young says that he did not; Hilliard says that he did) and whether Young ever requested that an appeal be filed (Young says that he repeatedly requested an appeal; Hilliard says that Young not only did not request an appeal but expressly told him not to file one).2 That task was complicated by an uncertain record of past events, unauthenticated documentation at the hearing, clear evidence of misrecollection of a pertinent fact by Mr. Hilliard, and testimony by Mr. Young that directly contradicted his previous sworn testimony before this Court at sentencing. After much consideration and struggle with this confused and muddled record,3 the Court finds that Mr. Hilliard is the more credible historian on the central issue of whether he consulted with his client about an appeal and complied with his client's wishes in that regard.

Hilliard's testimony, at the evidentiary hearing was consistent with his earlier affidavit (admitted as Movant's Ex. 1). He stated that he met with Young the day before sentencing, discussed the PSI and the guidelines range, explained that he expected Young to receive the 15-year mandatory minimum sentence, and pleaded with Young to disclose to the government the source of the firearm so that he might reduce his sentence. Tr. at 17, 45-46, 48-49. Hilliard advised Young of his right to appeal, but Young indicated that he did not desire to appeal. Id. at 45-46. Hilliard recalled receiving a letter from Young about 30 days after sentencing requesting that an appeal be filed, but as the deadline for appealing had passed, he wrote back explaining that Young was out of time. Id. at 17.

Hilliard testified that he had a firm memory of this meeting occurring at the Liberty County Detention Center. Id. at 17, 45-47. But evidence adduced at the evidentiary hearing established that while Young was initially confined at the Liberty County facility (from February 24 to May 3, 2010), he was transferred by the Marshal to the Bulloch County Jail where he remained confined for the two-month period preceding his sentencing on July 9, 2010. Gov't Ex. 1 (U.S. Marshal's Custody/Detention Report). In light of this evidence, Hilliard conceded that his memory as to the location of his presentence conference with his client was "[a]dmittedly ... faulty." Tr. at 46. But though he had no recollection of ever meeting with Young at the Bulloch County Jail, he was positive that he consulted with Young about both the PSI and his appellate rights and rejected a suggestion by Young's attorney that there was "no possible way" that he ever met with Young at the Bulloch jail. Id. at 46-47. At no point did Hilliard ever waver from his assertion that he met with Young before sentencing to discuss the PSI, the expected sentence, and Young's right to appeal.

During the hearing Young's attorney referenced some documentation that he had received from the Bulloch County Jail that purportedly reflected that Young had no visitors during the entire period of his detention at that facility. Id. at 7, 42-43. That document, which had been faxed to Young's counsel by a jail official who refused to appear without a subpoena, was never offered into evidence or made part of the record in these proceedings.4 The government, which had no opportunity to question the jail official about the document or the jail's visitation procedures, never stipulated to the document's admissibility. See id. at 43 (where the Court noted that the government "is not stipulating to your document."). Tr. at 43. The document, therefore, is not before the Court.

But even if the Court were to accept counsel's representation that the jail's sign-in sheet reflected no visitors, this would not preclude a finding that Hilliard in fact consulted with Young immediately prior to sentencing. After it was established that Young was housed at the Bulloch County Jail for several months prior to sentencing, Hilliard pointed out that while he had "no independent recollection of seeing Mr. Young in the Bulloch County Jail," he had other clients at that facility during this time frame. Id. at 46. He further explained that under the jail's sign-in procedure, an attorney seeking to visit a client must furnish his bar card and driver's license, and then write down the date, time, and name of the inmate of being visited: "The only thing is, is the inmate you write down, if you have a number of inmates you're going to see, you don't have room to put down every inmate." Id. at 47. Thus, even if Young's counsel's abbreviated summary of the never-admitted document is accepted as evidence, the record leaves open the possibility that Hilliard traveled to the Bulloch County Jail, listed another one of his clients on the jail's sign-in sheet, and then met with multiple clients (including Young) during that visit. So, Hilliard offered a sound basis for rejecting the notion that the sign-in sheet proved that there was "no possible way" that he ever met with Young at the Bulloch County Jail.

Further bolstering this conclusion is Mr. Young's own admission that he read the PSI. Id. at 28 ("Yeah, I read it."). The draft PSI was sent by overnight delivery to defense counsel on May 6, 2010, id. at 49, (and the revised PSI was forwarded on June 14, 2010) PSI at 1), after Young had been transferred to the Bulloch County Jail. Since Mr. Young was at the Bulloch County Jail when the PSI was forwarded to defense counsel, it is reasonable to infer that Hilliard brought that document to the jail for Young to read.5 Moreover, at no point during the § 2255 hearing did Mr. Young ever testify that Hilliard failed to meet with him at the Bulloch County Jail6 — he just claimed that Hilliard never discussed the PSI or his appellate rights with him. Tr. at 22-23. Thus, the document Young's counsel referred to during the hearing, even if admitted as evidence, would not cinch the case for Mr. Young as his counsel supposed.

Young's testimony at the hearing differed not only from Hilliard's but also from his own prior testimony before this Court. Though Young never testified that Hilliard failed to visit him at the Bulloch County Jail, he denied that Hilliard ever informed about his opportunity to appeal. He testified that Hilliard "told me that [the case] was over, that it wasn't nothing I could do but get 15 years" unless he "cooperated with the feds." Id. at 22. Young admitted that he read the PSI but stated that he did not understand it, id. at 28, and represented that he and Hilliard "never talked about my PSI no type of way." Id. at 31. This testimony directly conflicts with Young's sworn testimony at sentencing,7 where he answered affirmatively to the district judge's question whether he had "had an opportunity to read and discuss the presentence report with [his] lawyer." Sent. Tr. (Cr. Doc. 42) at 4 (emphasis added). He further acknowledged that he had no objections to the PSI's factual accuracy or to the probation officer's calculation of the sentencing guidelines. Id. When asked to explain this discrepancy at the § 2255 hearing, Young at first denied lying to the district judge. Tr. at 41. But he then elaborated that because his lawyer told him the judge had discretion under the guidelines to sentence him anywhere between 15 and 17 1/2 years, he was prepared to "say or do whatever [he] had to say or do to get the low end of the guideline." Id. This is a remarkable confession, susceptible of the reasonable interpretation that Young was willing to lie if he thought it was to his advantage.

Mr. Young's testimony that he never discussed the PSI with Hilliard is not credible. Young conceded that he read the PSI (which the probation officer sent to Hilliard, not to Young) and that Hilliard discussed with him the sentencing guidelines range calculated by the probation officer in that report (for he conceded that counsel told him the judge could sentence him anywhere from 15 to 17 1/2 years, which reflects precisely the guidelines calculations made by the probation officer in the PSI, i.e., 180 to 210 months). Id. at 41. This testimony is simply inconsistent with his earlier testimony that his attorney never talked with him about the PSI "no type of way." Moreover, to accept Young's testimony on this point — testimony which cannot be reconciled with his testimony to the district judge at sentencing that he had discussed the PSI with counsel — the Court would necessarily have to find that Mr. Hilliard effectively suborned perjury during the sentencing hearing, for certainly counsel would have known whether his client was lying when he told the district judge that they had discussed the PSI. The Court finds that Young was telling the truth when he told the district judge that he had read and discussed the PSI with his attorney. It rejects Young's testimony at the § 2255 hearing that no such discussions ever occurred.

The Court also disbelieves Young's testimony that defense counsel never consulted with him about an appeal or determined whether he wished to file an appeal. Young denied that he was ever told about an opportunity to appeal, id. at 22-23, and felt that his case "was over."8 Id. at 23. Nevertheless, Young claimed that he called Hilliard's office and wrote him some four or five letters indicating a desire to appeal. He failed to say when he made these requests, however. Thus, he offered no testimony that he made a timely request for an appeal — i.e., within 14 days of sentencing.

Hilliard stated in his affidavit (which Young introduced as evidence at the hearing, id. at 13) that he not only told Young of his right to appeal but "encouraged his appeal." Movant's Ex. 1. Hilliard reminded Young that he faced a 15-year mandatory minimum sentence and "advised him if he had any questions about his sentence he should appeal." Id. Young, however, disavowed any interest in pursuing an appeal. Id.

When asked about his affidavit by Young's counsel, Hilliard explained that it is his practice to encourage every defendant he represents to file an appeal, id. at 14-16, for even where he personally sees no meritorious grounds for an appeal, "[i]t never hurts to have a fresh set of eyes on a case, which can come from an appeal."9 Id. at 15. Although Hilliard conceded that he had a faulty memory as to where the conversation occurred, he was certain that he consulted with Young about an appeal: "We discussed the facts of the case, the discovery, the PSI, went over the guidelines range. I advised him of his right to appeal, and at that particular moment and time, he didn't want to appeal." Id. at 45-46; id. at 14 (Hilliard "encouraged" Young to appeal). Although Young finally expressed an interest in appealing, Hilliard did not receive Young's letter until some "thirty days after sentencing," but by that point the deadline had passed. Id. at 17.

The Court credits Hilliard's testimony that he not only consulted with his client about an appeal but, following his usual practice, encouraged him to file an appeal. Young ignored that advice, just as he ignored Hilliard's advice to disclose the source of the firearm that he was charged with possessing so that he might receive a sentence below the statutory minimum of 15 years. See 18 U.S.C. § 3553(e) (authorizing a court to impose a sentence below a statutory minimum upon motion by the government reflecting that the defendant has provided "substantial assistance in the investigation or prosecution of another person"). Young has failed to demonstrate either that his attorney neglected to consult with him about an appeal or that he requested an appeal before the time for doing so expired. In fact, the record persuades the Court that Young specifically told his attorney that he did not wish to pursue an appeal.

As Young's counsel pointed out early in his cross-examination of Mr. Hilliard, the question before the Court is "basically a credibility issue. My client is saying you didn't tell him that he could appeal; you're saying that you told him he could appeal." Tr. at 12. While the evidentiary hearing illuminated a flaw in Hilliard's memory as to precisely where he met with Young, after considering all the evidence and testimony and wrestling with the inadequacy of the record, at the end of the day the Court credits Hilliard's testimony that such a meeting did occur, that he discussed the PSI and likely sentence with his client, and that he consulted with Young about an appeal but determined that Young did not desire to pursue an appeal. Because his attorney was not ineffective in failing to file a notice of appeal, Young is not entitled to an out-of-time appeal in this case. The Court, therefore, must proceed to address the remaining claim raised by Young's motion.

II. Young's remaining claim is meritless

Young pled guilty to possessing a firearm as a felon under the terms of a plea agreement that contemplated a statutory minimum sentence of 15 years because he qualified as an armed career criminal.10 Cr. doc. 36 (plea agreement) at 2, 3. Young now claims that Hilliard was prejudicially ineffective under Strickland v. Washington, 466 U.S. 668 (1984), because he failed to challenge the Court's determination that Young had 3 or more "previous convictions ... for a violent felony or a serious drug offense," as those terms are defined by the Armed Career Criminal Act, 18 U.S.C. § 924(e). Cr. doc. 39 at 8. He says that two of the prior convictions did not meet either definition and thus he was improperly classified as an armed career criminal. Id. at 8-13.

Young's PSI recounted four qualifying convictions, three "serious drug offenses" and one "violent felony" under 18 U.S.C. § 924(e)(2). PSI ¶¶ 19, 30. The first occurred in 1996, when Young possessed cocaine with intent to distribute and later received a 5-year prison sentence. PSI ¶ 23. Then, in 1997, Young struck a police officer in the chest with his fist during a traffic stop, resulting in his guilty plea to felony obstruction of an officer and a ten-year sentence. PSI ¶ 24. That same year, Young sold cocaine and received a 10-year prison sentence. PSI ¶ 25. In 2000, Young was again indicted for the sale of cocaine and later pled guilty to the sale of the non-controlled substance "procaine," a local anesthetic, receiving a 7-year prison sentence. PSI ¶ 27.

Since Young qualified as an armed career criminal, the probation officer calculated his criminal history, credited his acceptance of responsibility, and arrived at an advisory guidelines range of 180 to 210 months' imprisonment. PSI ¶ 53. Young filed no written objections to the PSI. PSI, Addendum. And, as previously noted, he and Hilliard raised no objections to it at sentencing. Cr. doc. 42 at 4. The judge adopted the PSI's factual statements and guideline calculation. Id. Hilliard urged the mandatory minimum prison term. Id. at 4-5. The judge agreed and sentenced Young to 180 months in prison. Id. at 5.

Young faults Hilliard for failing to argue that his prior conviction for felony obstruction of an officer (in violation of O.C.G.A. § 16-10-2411) did not constitute a "violent felony" under 18 U.S.C. § 924(e)(2)(B). Cr. doc. 39 at 8-9. More specifically, he claims that Hilliard should have objected to the district judge's reliance on the PSI's description of that prior offense in concluding that it entailed violence. Id. at 9-10.

The Armed career criminal Act defines the term "violent felony" as meaning any felony offense that

18 U.S.C. § 924(e)(2)(b) (emphasis added); see also U.S.S.G. § 4B1.2(a). Young admitted, per his failure to object to the PSI, that his conviction for felony obstruction of an officer involved the striking of a police officer. He ignores the fact that he, not just Hilliard, was asked if he disputed any part of the PSI, and he said that he did not. Cr. doc. 42 at 4. And as noted above, the Court finds that Young was telling the truth when he told the district'judge that he had read and discussed the PSI with his attorney. It further finds that he understood it — including the simple factual assertion that the offense involved the striking of a police officer.

It is established law that a sentencing judge is entitled to apply the armed career offender enhancement based on a defendant's assent to facts contained in the PSI. Shepard, 544 U.S. at 16; United States v. Beckles, 565 F.3d 832, 843 (11th Cir. 2009); see also United States v. Anderson, 442 F. App'x 537, 539 (11th Cir. 2011). Indeed, the district court may base its factual findings on undisputed statements in the PSI "even if there is an absence of supporting evidence." Beckles, 565 F.3d at 844. Here, the PSI's description of Young's conduct rested on an indictment that specifically charged Young with striking a police officer in the chest with his fist during a traffic stop. PSI ¶ 24. That indictment, and the judgment of conviction reflecting Young's guilty plea to that charge, was available to the Court as part of the probation officer's "Shepard" file. At sentencing, Young did not dispute that his felony obstruction conviction involved "doing violence" to a police officer under O.C.G.A. § 16-10-24(b), and his § 2255 motion refers to no evidence to the contrary.

Georgia law criminalizes the obstruction of a law enforcement officer "by offering or doing violence to the person of such officer. ... O.C.G.A. § 16-10-24(b). At the time of Young's conviction in 1997, the Georgia statute contained the same language. See Lemarr v. State, 188 Ga.App. 352 (1988); Reese v. Herbert, 527 F.3d 1253, 1272 n. 30 (11th Cir. 2008). The PSI, in reliance upon the state court record reflecting that Young struck a police officer "in the chest with his fist during a traffic stop," PSI ¶ 24, established that Young not only offered to do violence but actually engaged in violence when he obstructed the officer. Even if Young had not assented to the probation officer's finding that he committed a violent felony, the sentencing judge had sufficient judicial records from the state court to make such a finding. Young, therefore, has not shown that his attorney was ineffective.

In that this analysis affirms the existence of at least three qualifying convictions, the Court agrees with the government (Cr. doc. 45 at 11) that it is not necessary to reach Young's remaining argument that Hilliard was ineffective in failing to challenge his conviction for sale of a non-controlled substance as not constituting a "serious drug offense" under 18 U.S.C. § 924(e)(1). Cr. doc. 39 at 11-13. It follows that Hilliard was not ineffective in failing to contest Young's status as an armed career criminal under § 924(e). Young's § 2255 motion therefore must be DENIED. Cr. doc. 38.

SO REPORTED AND RECOMMENDED.