NANCY J. ROSENSTENGEL, District Judge.
This matter comes before the Court on Petitioner James Earl Brown's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1).
On September 24, 1998, James Earl Brown pleaded guilty to charges of conspiracy to distribute cocaine base (Count 1), distribution of cocaine base (Count 19), and felon in possession of a firearm (Count 20). United States v. James E. Brown, SDIL Case No. 97-cr-30089-13, Docs. 381, 382. He was sentenced on January 12, 1999, by District Judge William Stiehl to a total of 262 months' imprisonment and five years' supervised release. Id. at Doc. 418, 421.
Brown was released from prison and began his term of supervised release on January 4, 2011. SDIL Case No. 97-cr-30089-13, see Doc. 909. In October 2012, Brown's probation officer filed a petition to revoke his supervised release based on numerous violations. Id. at Docs. 909, 924. The most substantial violations included possession of a firearm by a felon; possession of a controlled substance; and possession of a controlled substance with intent to distribute. Id. at Docs. 924, 976.
A revocation hearing was held on October 31, 2012, and Brown admitted to some of the violations and did not contest the others. SDIL Case No. 97-cr-30089-13, Docs. 926, 976. Judge Stiehl found Brown guilty of all the violations and ordered his supervised release be revoked. Id. at Doc. 926. Brown was sentenced to a total of 72 months' imprisonment. Id. Specifically, he was sentenced to sixty months as to Count 1, twelve months as to Count 19, and twelve months as to Count 20. Id. The twelve-month sentences were to run concurrent to each other and consecutive to the sixty-month sentence. Id.
Brown filed his § 2255 petition on November 3, 2013 (Doc. 1). Brown's only argument is that Dan Cronin, his attorney at the revocation hearing, provided ineffective assistance when he failed to file a notice of appeal after Brown requested that he do so (Doc. 1). Brown supported his petition with a short affidavit (Doc. 1-1). That affidavit states, in pertinent part:
The Government filed a response to Brown's petition on December 17, 2013, and addressed his claim on the merits (Doc. 4). Attached to the Government's response was an affidavit from Dan Cronin, who expressly denies that Brown ever asked him to file an appeal (Doc. 4-2). Mr. Cronin's affidavit states, in pertinent part:
(Doc. 4-2, Doc. 4-3, Doc. 4-4).
Brown filed a reply brief on January 13, 2014, asserting the Court must hold an evidentiary hearing to resolve the conflict between his and Mr. Cronin's affidavits (Doc. 5). After reviewing the parties' submissions, however, the Court determined that the allegations in Brown's affidavit were too vague and conclusory to make the threshold evidentiary showing necessary to warrant an evidentiary hearing.
To that end, Brown appeared before the Court via video on February 14, 2017 (Docs. 25, 27). The Court first probed into Mr. Brown's assertion that he asked Dan Cronin to file an appeal "immediately following sentencing."
The discussion then turned to the letter from Dan Cronin dated October 31, 2012, which Mr. Brown indicated that he did not get "until like sometime later in November . . . [when] it was sent back out to me by [Mr. Cronin] and the public defender's office [on] November 20, 2012."
Cronin to file a notice of appeal after he received the October 31st letter.
Because Brown's answers conflicted with the assertions in his affidavit, the Court pressed Brown.
28 U.S.C. § 2255 requires a court to vacate, set aside, or correct the sentence of a prisoner in custody if it finds that "the sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. "[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006)). Thus, it "is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice." Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013) (citations omitted).
Here, Brown alleged his Sixth Amendment right to counsel was violated when his attorney did not file a notice of appeal despite his instruction to do so. To prevail on a claim of ineffective assistance of counsel, a petitioner is normally required to "meet the familiar two-part standard set forth in Strickland." McElvaney v. Pollard, 735 F.3d 528, 532 (7th Cir. 2013) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)). The petitioner must show that his counsel's performance was deficient, "meaning it fell below an `objective standard of reasonableness'" and his counsel's deficient performance prejudiced him. McElvaney, 735 F.3d at 532 (quoting Strickland, 466 U.S. at 688). The Seventh Circuit has held, however, that when a defendant claims his lawyer failed to comply with his request to file a direct appeal, the lawyer's failure "is per se ineffective assistance of counsel," and the defendant need not show prejudice in order to prevail on the ineffectiveness claim. Gant v. United States, 627 F.3d 677, 681 (7th Cir. 2010); Kafo, 467 F.3d at 1066, n.7. See also Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000) ("[W]hen counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim," and prejudice can be presumed without any "showing from the defendant of the merits of his underlying claims."); Ryan v. United States, 657 F.3d 604, 606 (7th Cir. 2011) ("When a defendant in a criminal case specifically instructs a lawyer to file a notice of appeal, the lawyer's failure to do so deprives the defendant of the Sixth Amendment right to counsel, regardless of whether an appeal was likely to succeed."); Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994) ("[F]ailure to take an appeal, despite the defendant's request, is ineffective assistance without regard to the probability of success on appeal.")
Here, the first issue the Court must consider is whether an evidentiary hearing is required to resolve Brown's claim. "A district court need not grant an evidentiary hearing in all § 2255 cases." Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001); accord Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002). For example, a hearing is not required when "the files and records of the case conclusively show that the prisoner is entitled to no relief." Lafuente v. United States, 617 F.3d 944, 946 (7th Cir. 2010) (quoting 28 U.S.C. § 2255(b)). A hearing is also not necessary if the petitioner's allegations are "palpably incredible" or "inherently unreliable" Bruce, 256 F.3d at 597 (citing Machibroda v. United States, 368 U.S. 487, 495 (1962)); Barker v. United States, 7 F.3d 629, 636 n.3 (7th Cir. 1993) (quoting United States v. Trussel, 961 F.2d 685, 689 (7th Cir. 1992)). A hearing must be granted, however, if the petitioner "alleges facts that, if proven, would entitle him to relief." Lafuente, 617 F.3d at 946. Thus, the salient question for the Court is whether the facts supporting Brown's allegation of ineffective assistance, as set forth in his affidavit and his in-person statements to the Court, constitute sufficient evidence to make his allegation plausible and to warrant further inquiry by the Court. Ryan, 657 F.3d at 606; Lafuente, 617 F.3d at 946; Mahaffey v. Ramos, 588 F.3d 1142, 1144 (7th Cir. 2009); Kafo, 467 F.3d at 1067-69.
Here, Brown initially swore that he asked Dan Cronin to file a notice of appeal on two separate occasions. It is now clear, however, that the second request never happened. In his affidavit, Brown stated that he made his second request in November 2012, "upon receiving a[n] October 31, 2012 Memorandum from attorney Cronin" (Doc. 1-1). But after Mr. Cronin disputed Brown's assertion (Doc. 4-2), Brown completely changed his story and admitted under oath that he did not have any conversations with Cronin after he received the letters (Doc. 27).
That leaves only Brown's first alleged request. In his affidavit, Brown swore that he made his first request to Mr. Cronin "immediately following sentencing" (Doc. 1-1). This implies to the Court that Brown made an in-person request to Mr. Cronin while he was still in the courthouse, perhaps still in the courtroom, on the day of his sentencing.
Brown's sworn statements regarding this first request are not credible on their face given that Brown could not keep his story straight. Notably, this was not the only aspect of Brown's story that changed. As previously mentioned, Brown told two different stories about his purported second request to Cronin. He also told two different stories about when he learned that no appeal had been filed. Brown initially swore that he learned in August 2013 from someone at the prison's law library that an appeal had not been filed (Doc. 1-1). But then Brown swore to the Court that he actually found out that no appeal had been filed after calling the Clerk of Court's office in November 2012 (Doc. 27). Simply put, Brown's statements to the Court with respect to all of the most crucial aspects of his story were completely inconsistent with his initial version of the story.
Brown also failed to offer any explanation for the change in his story regarding his first request to Mr. Cronin or to otherwise justify why he neglected to mention the phone call in his affidavit. After speaking to Brown in person, the Court was left with the impression that Brown realized his initial story did not jibe with the timeline of Mr. Cronin's first letter to him,
In sum, the inconsistencies in Brown's story and its incompatibility with undisputed evidence make his allegation that he instructed Dan Cronin to file a notice of appeal patently unbelievable and inherently unreliable. This finding obviates the need for a full evidentiary hearing or any further investigation by the Court. This finding also means that Brown's petition for relief under § 2255 can be summarily denied. See Gant v. United States, 627 F.3d 677, 681 (7th Cir. 2010) (explaining that for a defendant to succeed on a claim that he asked his attorney to pursue a direct appeal and the attorney did not do so, "a defendant must show that he actually requested his attorney file an appeal."); Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994) ("`Request' is an important ingredient in this formula. A lawyer need not appeal unless the client wants to pursue that avenue.").
Brown cannot appeal the denial of his § 2255 petition unless this Court or the Court of Appeals issues a certificate of appealability. See FED. R. APP. P. 22(b); 28 U.S.C. § 2253(c)(1). Pursuant to § 2253, a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "That standard is met when "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner." Welch v. United States, 136 S.Ct. 1257, 1263 (2016) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
For the reasons detailed above, the Court has determined that Brown did not state any grounds for relief under § 2255, and reasonable jurists could not debate that conclusion. Thus, Brown has not made "a substantial showing of the denial of a constitutional right," and a certificate of appealability will not be issued.
James Earl Brown's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is
