ROBERT T. NUMBERS, II, Magistrate Judge.
Petitioner Gary Starkie, proceeding under 28 U.S.C. § 2255, asks the court to vacate his sentence because, he claims, his attorneys' performance fell below the level required by the Constitution. D.E. 154; D.E. 66. His argument is based on two alleged flaws in his attorneys' performance. First, he claims that the attorney who represented him during his direct appeal was unaware of and did not advise him of the Supreme Court's decision in Nelson v. Colorado, 137 S.Ct. 1249 (2017). And, second, he claims that the attorney who represented him at his resentencing did not adequately advise him of his right to appeal given his intellectual capacity and mental health issues and failed to file an appeal after Starkie asked him to do so. D.E. 154, 160.
The Government responded to Starkie's motion by filing a partial motion to dismiss. It claims that Starkie's Nelson claim fails for two reasons. To begin with, the Government claims, Starkie's appellate counsel could not have erred by not being aware of Nelson, because the Supreme Court had not issued its opinion before his appeal concluded. And even if Nelson were on the books at the time of his appeal, the Government claims that it does not apply to his case. D.E. 162.
The Government agreed that Starkie was entitled to an evidentiary hearing on the issues related to filing an appeal after resentencing. Id. The undersigned held an evidentiary hearing in April 2019. At the hearing, besides the ground raised in the motion, Starkie's counsel claimed that the attorney who represented Starkie at resentencing had a duty to determine that Starkie was unable to understand his appeal rights and to try to address this fact. At the end of the hearing, the Government argued that Starkie had no right to relief on his second claim.
After the hearing the court allowed the parties to file supplemental briefs. The Government filed its supplemental brief, D.E. 215, along with a motion for leave to file it out of time. D.E. 216. Starkie moved to amend or correct his § 2255 motion, D.E. 217, to which the Government responded, D.E. 224. Starkie also sought leave to file his pleading out of time, D.E. 221, along with a motion to expand the record seeking inclusion of exhibits referenced at the hearing but never moved into evidence. D.E. 223.
The undersigned grants the parties' motions to file their pleadings out of time (D.E. 216, 221), and grants Starkie's motion to expand the record (D.E. 223). But the undersigned denies Starkie's motion to amend or correct his § 2255 motion (D.E. 217) as the claims it seeks to add are either duplicative of existing claims or barred by the statute of limitations.
After reviewing the docket and the arguments of the parties, the undersigned finds that Starkie has no right to relief on his Nelson claim for the reasons stated by the Government. And he has no right to relief on his appeal-based claims because his attorney complied with his duties under the Constitution. Thus, the undersigned recommends that the court deny Starkie's Motion to Vacate (D.E. 154) and grant the Government's Motion to Dismiss (D.E. 161).
A federal jury found Starkie guilty of possession of a firearm by a felon in January —. D.E. 66. Several months later, the District Court sentenced Starkie to 300 months in prison. D.E. 105, 107. Starkie unsuccessfully appealed his sentence to the Fourth Circuit in early 2015. D.E. 117. But later that year, after the Supreme Court declared the Armed Career Criminal Act's residual clause to be unconstitutional in Johnson v. United States, Starkie asked the Fourth Circuit to rehear his case. D.E. 120. The Court of Appeals agreed to reconsider its decision and eventually vacated his sentence and remanded the case for resentencing. D.E. 120, 124.
The District Court resentenced Starkie to 114 months in prison on May 10, 2017. D.E. 146. Starkie did not appeal the Amended Judgment. But he did move to vacate his sentence in April 2018, D.E. 154, which he moved to amend about two weeks later. D.E. 160. One month later the Government asked the court to dismiss Starkie's motion. D.E. 161.
At the evidentiary hearing, several witnesses testified about Starkie's mental status and events related to whether Starkie wished to appeal the Amended Judgment the court imposed after his resentencing.
The concerns for Starkie's mental health stem from a violent episode he was involved in during his youth. Starkie grew up in a household with an alcoholic father who would regularly and viciously abuse Starkie's mother. Tr. at 13:9-14, D.E. 208. When Starkie was 9 years old, he witnessed the gruesome death of both his parents in a murder-suicide. Tr. at 13:24-14:19. While Starkie was sitting on a couch, he saw his father slash his mother's head with a knife. Id. As Starkie tried to help his mother, his father returned to the room and murdered her by shooting her in the face with a shotgun. Tr. at 13:24-14:19. Then, with Starkie watching, his father ended his own life by turning the gun on himself. Id.
Many years later, Starkie found himself being resentenced in federal court for a conviction of being a felon in possession of a firearm. Edward K. Roberts, a court-appointed attorney represented Starkie at his resentencing. Id. at 24:24-25:1. Roberts had not represented Starkie during his trial, at his first sentencing, or during his initial appeal. Tr. at 22:24-23:5 & 23:21-24:14. In the weeks before the resentencing, Starkie claims that he and Roberts met once and exchanged several letters. Tr. at 25:5-7 & 41:8-15.
At the resentencing, Roberts argued that Starkie should receive a shorter sentence based on the events of his childhood and letters submitted by Starkie's family members. Tr. at 25:24-26:3. Along with imposing a sentence of 114 months in prison, tr. at 36:2-3, Judge Flanagan advised Starkie of his right to appeal, tr. at 27:2-8.
After the resentencing, Starkie met with Roberts. Id. at 27:15-19. Starkie was very upset about the sentence he received and disagreed with the judge's decision. Id. Starkie claims that as part of their discussion he told Roberts that he wanted to "go back to court." Id. at 27:23.
A few days later, Roberts sent a letter to Starkie explaining what had happened at sentencing and providing his view that there was a limited chance that Starkie could prevail on appeal. Id. at 28:16-25. But the letter said Roberts would file an appeal if Starkie wanted to do so. Id.
Starkie received Roberts's letter while he was at Piedmont Regional Jail. Tr. at 28:2-4. Another inmate, Donald Garner, read Roberts's letter and explained it to Starkie. Id. at 60:2-3. Garner advised Starkie to write Roberts and tell him he did not want to appeal and that he was content. Id. at 29:4-17. Garner told Starkie that if he did not leave things alone, and he went back to court, he may get a higher sentence, which scared Starkie. Id. at 61:23-25. So Starkie, with Garner's help, wrote a letter to Roberts that said, in part
Id. at 31:7-10.
After arriving back at FCI Edgefield, Starkie enlisted the help of another inmate, Jimmy Nance. Id. at 53:11-12. Nance prepared Starkie's § 2255 petition, which Starkie reviewed and signed. Id. at 54:14-20. Starkie said he did not use the word "appeal" but told Nance that he informed Roberts that he wanted to go back to court. Id. at 55:23-56:5; 56:25-57:1.
After his resentencing, Starkie sent a few letters to Roberts and called him on at least two occasions. Id. at 56:15-18. Starkie wrote to Roberts's secretary requesting some of his things back. Id. at 63:12-13. But the letter did not state that Starkie wanted to go back to court or mention an appeal. Id. at 63:14-16, 64:4-10.
Starkie maintains that if he understood "appeal" meant going back to court, he would have used that term in asking Roberts to file an appeal. Id. at 73:10-15.
Jimmy Nance was a fellow inmate and self-described "jailhouse lawyer," who discussed Starkie's legal proceedings with him. Tr. at 79:21-80:11. Nance testified that Starkie told him that he instructed Roberts to file a notice of appeal. Id. at 84:21-24; 82:13-15. Nance testified that Starkie used the term "appeal" when discussing the matter. Id. at 85:17-18. Although he may not have understood what was involved in an appeal, Starkie knew he needed to do it to stay in court or go back to court. Id. at 85:21-86:4. Nance also stated that whether Starkie told Roberts he wanted to file an appeal or go back to court, they had the same meaning to him. Id. at 91:4-11.
Nance spent at least 100 hours with Starkie and observed that he had issues with his memory and recollecting events. Id. at 93:8-10; 93:15-18. Nance said that he would have been surprised if Starkie could recall word-for-word statements made two to three years earlier. Id. at 93:16-94:6. And Nance stated that Starkie never told him that he informed Roberts that he did not want to go back to court or mess with his sentence. Id. at 98:5-8.
Starkie presented Frank Wood, Ph.D., as an expert witness in neuropsychology and schizoid diagnoses. Id. at 102:16; 110:20-21. Dr. Wood examined Starkie to determine his level of cognitive functioning. Id. at 111:2-4. Dr. Wood met with Starkie three times for a total of five to six hours. Id. at 111:24-112:3.
Dr. Wood concluded Starkie had intellectual disability with a schizophreniform disorder. Id. at 126:17-18, 126:23-25. According to Dr. Wood because of Starkie's impairments, he would need someone to independently advise him and help decide what to do. Id. at 150:18-20, 151:10-12.
Dr. Wood stated that it was possible that a person may not know of Starkie's issues with comprehension and understanding. Id. at 145:16-25. Such deficits would not be apparent to an untrained individual without Dr. Wood's level of expertise. Id. at 146:1-6. Dr. Wood testified that an attorney would not be able to recognize Starkie's issues of understanding and comprehension Id. at 153:7-11. And Dr. Wood acknowledged that Starkie's memory was unreliable. Id. at 156:21-24.
Edward K. Roberts, Starkie's counsel at resentencing, was the next to testify. Roberts has been a defense attorney for almost 20 years and mainly handles criminal cases in both state and federal court. Id. at 158:9-13.
After being assigned to represent Starkie for his resentencing, Roberts met with Starkie to discuss the case, once in-person and once by videoconference. Id. at 160:3-5, 160:10-13. Additionally, Roberts and Starkie sent correspondence to one another, 13 letters written by Starkie and six letters from Roberts, in the five-month period before resentencing. Id. at 160:12-24. Roberts also testified that there were seven calls between them, showing that Starkie was active in his defense. Id.
Their first meeting lasted almost two hours. Id. at 161:3-9. Roberts found Starkie very engaged in his case, referencing case law and the benefit of being sentenced under an earlier version of the sentencing guidelines. Id. at 162:15-24. Roberts believed that Starkie understood more about his case than most other clients he had represented. Id. at 165:2-5. Roberts stated that Starkie's grasp of the proceedings was apparent from the cumulative dialogue between the two of them. Id. at 171:18-172:3. For example, Starkie could explain why case law required Judge Flanagan to make certain decisions during his resentencing. Id.
Roberts noted that Starkie allocuted competently at the resentencing hearing. Id. at 168:21-169:1. Right after the resentencing hearing, Roberts met with Starkie again in the U.S. Marshal's holding cell. Id. at 169:10-14. During this meeting, Starkie did not suggest that he wanted to appeal. Id. at 172:4-7.
Roberts sent a letter to Starkie five days after the resentencing hearing. Id. at 172:24-25. The letter requested that Starkie promptly advise Roberts if he wanted to appeal because he had 14 days to do so. Id. at 173:7-9. Starkie sent a letter to Roberts on May 18, 2017, stating that he did not want to pursue an appeal. Id. at 173:22-174:2. Roberts also testified that he received additional correspondence from Starkie but none mentioned an appeal. Id. at 174:9-11.
Roberts sensed no misunderstanding by Starkie of the legal advice he provided. Id. at 175:6-8. And Roberts had no reason to question Starkie ability to understand his legal advice. Id. at 175:9-13. Roberts also testified that nothing in Starkie's prison records caused him pause about Starkie's abilities. Id. at 176:11-14. Even though Roberts was aware of the trauma Starkie experienced as a child, he did not believe that impacted Starkie's ability to understand the legal proceedings. Id. at 178:25-179:4.
If Starkie had told him he wanted to go back to court, Roberts would take that to mean that Starkie wanted to appeal. Id. at 182:21-23.
Starkie seeks to amend his 2255 motion a second time. He asks to add a claim that provides supplemental facts about his intellectual functioning and mental health in support of his existing claim that his attorney failed to advise him properly about his appellate rights and failed to file a notice of appeal when asked to do so. He also seeks to add two additional claims. First, that his counsel provided ineffective assistance during resentencing by failing to request a competency evaluation. Second, he seeks to add a claim that his attorney violated his rights at resentencing by not investigating or developing mitigating evidence of Starkie's intellectual deficits at resentencing.
A section 2255 petition "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242; see also United States v. MacDonald, 641 F.3d 596, 616 n.12 (4th Cir. 2011). A party may amend his pleading once as a matter of course within 21 days after service, or, if it is a pleading requiring a response, within 21 days after service of the response or service of a motion under Rule 12(b), (e), or (f). See Fed. R. Civ. P. 15(a)(1). Otherwise, a party may amend his pleading only with the written consent of the opposing party or by leave of court. Fed. R. Civ. P. 15(a)(2). Without bad faith, undue prejudice to the opposing party, or futility of amendment, courts should freely grant leave to amend under Rule 15(a). United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000) (citing Forman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L. Ed. 2d 222 (1962)); Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999).
The court denies Starkie's motion to add a supplemental facts about his Flores-Ortega claim because it is duplicative of the existing claim. The Government has conceded that Starkie stated a claim about the advice his counsel gave related to his appeal rights and the court has conducted an evidentiary hearing, heard argument, and received supplemental briefing that largely focused on that issue. The court will address this issue without the need to amend the pleadings further.
The court declines to grant Starkie's request to add two additional claims about his resentencing because they are barred by the statute of limitations. A motion to vacate under 28 U.S.C. § 2255 must be filed one year from "the date on which [a petitioner's] judgment of conviction becomes final." § 2255(f)(1). A judgment of conviction becomes final, if the defendant does not appeal, when the time for taking an appeal expires. See Fed. R. App. P. 4(b)(1) (requiring a criminal defendant to appeal a sentence within 14 days of judgment, unless the court grants a motion for extension of time); United States v. Sanders, 247 F.3d 139, 142 (4th Cir. 2001) (stating that "since [petitioner] did not file a direct appeal, his conviction became final for purposes of § 2255 subsection (1)," on the date "upon which he declined to pursue further direct appellate review").
The court entered Starkie's amended judgment on May 10, 2017. D.E. 146. He did not file a direct appeal, so his judgment became final on May 24, 2017, when the time to file a notice of appeal expired. Thus, the claims in the latest motion to amend, filed about two years after his judgment became final, are barred by the one-year limitations period in § 2255(f)(1).
The only way for Starkie to avoid the bar imposed by the statute of limitations is if his proposed amendments relate back to the timely filing of his original motion. See Fed. R. Civ. P. 15(c). To benefit from the relation-back doctrine, a party must show that "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading." Fed. R. Civ. P. 15(c)(1)(B).
The Fourth Circuit has addressed the application of the relation-back doctrine in the § 2255 context in United States v. Pittman, 209 F.3d 314, 318 (4th Cir. 2000). In Pittman the Court of Appeals explained that "[t]he fact that amended claims arise from the same trial and sentencing proceeding as the original motion does not mean that the amended claims relate back for purposes of Rule 15(c)." Id. at 318. Instead, for a proposed amendment to relate back to the original filing, "the untimely claim must have arisen from the `same set of facts' as the timely filed claim, not from separate conduct or a separate occurrence in `both time and type.'" Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000). Claims that arise out of a separate phase of a criminal proceeding than the claims in the original petition do not relate back to the time of the original filing. Pittman, 209 F.3d at 318. (explaining that an appeal-related claim did not relate back to the time of filing of the original motion, which dealt with sentencing-related issues).
Both of the additional claims Starkie seeks to add concern counsel's alleged deficiencies at resentencing. But challenging counsel's failure to seek a competency evaluation of Starkie or to investigate, develop, and present mitigating evidence of Starkie's intellectual deficiencies at resentencing not only relate to a different stage of the criminal proceedings but also raise different facts from an alleged failure to file a notice of appeal on Starkie's behalf. So the proposed additional grounds do not relate back to Starkie's earlier § 2255 pleadings. See Cobb v. United States, Nos. 5:10-CR-40-F, 5:13-CV-719-F, 2017 WL 573521, at *8 (E.D.N.C. Feb. 13, 2017); McGovern v. United States, Nos. 3:07-CV-32, 3:05-CR-405, 2008 WL 1820890, at *4 (W.D.N.C. Apr. 21, 2008) (proposed amendment to section 2255 petition arguing counsel failed to file a notice of appeal did not relate back to original claim that counsel was ineffective for failing to raise a bipolar defense at sentencing).
Concluding that the new grounds for relief are supported by facts that differ in both time and type from those set forth in the original § 2255 motion, the undersigned denies Starkie's motion to amend (D.E. 217).
To prevail on his Motion to Vacate, Starkie must show that (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; or (3) that his sentence exceeded the maximum authorized by law. 28 U.S.C. § 2255(a). "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 thereon, determine the issues and make findings of fact and conclusions of law" about the petitioner's motion. 28 U.S.C. § 2255(b). But ultimately, the petitioner must establish that he is entitled to relief by a preponderance of the evidence. See, e.g., Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) (per curiam).
Starkie claims that the sentence imposed by the Amended Judgment violated the Constitution because his counsel's performance was so inadequate that it violated his right to counsel under the Sixth Amendment to the Constitution. The Government correctly asserts that Starkie has not shown that his attorneys' performance was objectively unreasonable and that he suffered prejudice as a result of their actions.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." U.S. Const. amend. VI. An attorney can violate a defendant's right to assistance of counsel if he attorney fails to provide adequate legal assistance. Strickland v. Washington, 466 U.S. 668, 686 (1984).
In Strickland, the Supreme Court held that a petitioner must satisfy a two-prong test to establish a claim of ineffective assistance of counsel. 466 U.S. at 686-87. First, the petitioner must show that his attorney's performance fell below an objective standard of reasonableness. Id. at 688. Second, the petitioner must show that he was prejudiced by his attorney's unreasonable performance. Id. at 693.
As for the reasonableness prong, courts must be "highly deferential" to counsel's performance and must make every effort to "eliminate the distorting effects of hindsight." Id. at 689. Thus, the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. To show prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Additionally, the difference in outcome as a result of the unprofessional errors must have harmed the petitioner. Id. at 693.
Starkie first argues that his appellate counsel was ineffective because he was unaware of the Supreme Court's decision in Nelson v. Colorado. The Government has requested that the court dismiss this claim because the Supreme Court decided Nelson after Starkie's direct appeal concluded and argues that its holding does not apply to Starkie's case. After reviewing the docket and the arguments of the parties, the undersigned finds that the district court should dismiss this claim.
The Federal Rules of Civil Procedure apply to a § 2255 motion only if they do not conflict with any other statutory provisions or the procedural rules specifically applicable to § 2255 motions. Rules Governing Section 2255 Proceedings, Rule 12. Thus, in reviewing the Government's Motion to Dismiss, the court will apply the standard that generally applies to motions brought under Rule 12(b)(6).
The Supreme Court has explained that to withstand a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Thus, while a court must accept all the factual allegations in a complaint as true, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id. The court may also consider documents that are part of the public record, Philips v. Pitt Cty Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009), and in the context of a § 2255 motion, "the files and records of the case[,]" 28 U.S.C. § 2255(b).
After Iqbal, a court considering a motion under Rule 12(b)(6) must subject a complaint to a two-part test. First, the court must identify the allegations in the complaint that are not entitled to the assumption of truth because they are conclusory or just a formulaic recitation of the elements of a claim. Iqbal, 556 U.S. at 679. Then, taking the remaining factual allegations as true, the court must determine whether the complaint "plausibly suggest[s] an entitlement to relief." Id. If, after conducting this two-part analysis, "the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not `shown' — `that the pleader is entitled to relief'" Id. If a party fails to show that they are entitled to relief, the court must dismiss the deficient claims.
Starkie argues that his appellate counsel erred by not advising him of the outcome of Nelson v. Colorado. But the Government correctly notes that the Supreme Court had not decided Nelson at the time of his direct appeal. The Fourth Circuit issued its initial judgment in affirming his sentence May 2015, D.E. 118, and issued its final judgment vacating his sentence and remanding the case in August 2016, D.E. 124. The Supreme Court did not decide Nelson until April 2017. Id. at 1249. Thus, Starkie has no right to relief on this basis.
And even Nelson was the law at the time of Starkie's direct appeal, its holding does not apply to him. Nelson addressed whether Colorado could retain funds from taken from two inmates' prison accounts to pay costs, fees, and restitution related to their conviction after their convictions had been vacated. Id. at 1253. Under the existing Colorado law, the former inmates "must prove her innocence by clear and convincing evidence to obtain the refund of costs, fees, and restitution paid pursuant to an invalid conviction." Id. at 1255. The Supreme Court held that the statute violated due process because, among other reasons, "once those convictions were erased, the presumption of innocence was restored." Id. Thus, the Supreme Court held, Colorado could "not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated." Id. at 1258.
Although the Fourth Circuit vacated Starkie's sentence, it did not overturn his conviction. So unlike the defendants in Nelson, he had no ability to claim that the Fourth Circuit's decision restored his presumption of innocence. And Starkie's case also differs from Nelson because he is not seeking the return of funds or property from the Government. Thus, Nelson would not have any impact on his case and his attorney's failure to raise it during his appeal would not have been objectively unreasonable. The district court should dismiss Starkie's first claim for relief.
Starkie next objects to his attorney's performance in connection with the appeal of the Amended Judgment entered after his resentencing. At first he claimed that Roberts failed to advise him of his right to appeal and to file an appeal after Starkie instructed him to do so. Starkie later claimed that Roberts also had a duty to discern that he had a mental disability that would prevent him from understanding what an appeal was in his case. Neither the evidence presented at trial nor the law support Starkie's argument. The district court should dismiss this claim as well.
As the Supreme Court discussed in Roe v. Flores-Ortega, 528 U.S. 470 (2000), the right to effective assistance of counsel imposes certain responsibilities on defense counsel related to a defendant's right to appeal. To begin with, an attorney "who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Id. at 477. If a petitioner can show that his attorney disregarded a specific instruction to file a notice of appeal, the court will presume that the petitioner suffered prejudice from his attorney's error. United States v. Poindexter, 492 F.3d 263, 268 (4th Cir. 2007).
On the other hand, "a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently." Flores-Ortega, 528 U.S. at 477 (emphasis in original).
In some cases a defendant may not give his attorney any instructions about whether he wishes to appeal. When faced with this circumstance, "counsel has a constitutionally imposed duty to consult with the defendant about an appeal" in two circumstances. First, an attorney must consult with the defendant about an appeal if "there is reason to think ... that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal)[.]" Id. at 480. And, second, an attorney must consult about an appeal if "there is reason to think ... that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Id. When assessing whether counsel was under a duty to consult with his client about an appeal, "courts must take into account all the information counsel knew or should have known." Id.
Once the duty arises, the attorney must "advis[e] the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes." Flores-Ortega, 528 U.S. at 478. After doing so, an attorney's "failure to file an appeal is deficient only if it contradicts the defendant's instruction to appeal." Hudson v. Hunt, 235 F.3d 892, 896 (4th Cir. 2000).
If an attorney fails to consult with a defendant about an appeal when he should have, a defendant must still show that he suffered prejudice from this error. Id. at 484. To show prejudice "a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id.
The court's analysis under Flores-Ortega begins with a consideration of whether Starkie gave Roberts explicit instructions about whether he wanted to appeal. Starkie contends in his motion that Roberts disregarded an explicit instruction to file an appeal. And at the evidentiary hearing, Starkie claimed he expressed a desire to keep pursuing his case when he told Roberts he wanted to "go back to court." But witness testimony and Starkie's correspondence to Roberts show that he explicitly told Roberts he did not want to appeal. After considering all of the evidence, the undersigned does not find Starkie to be credible and, instead, credits the version of events in which Starkie explicitly instructed his attorney to not pursue an appeal.
Given the conflicting testimony the court received, an assessment of the credibility of the various witnesses is central to resolving Starkie's motion. In assessing a witness's credibility a court may consider "variations in demeanor and tone of voice." Anderson v. City of Bessemer, N.C., 470 U.S. 564, 575 (1985). And "[d]ocuments or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it." Id. The fact finder may also consider the witness's motives and the level of detail in their statements. See, e.g., United States v. Wilson, 624 F.3d 640, 665 (4th Cir. 2010).
Roberts's testimony was matter-of-fact and not adversarial in tone. He showed genuine concern about achieving the best possible outcome in Starkie's criminal case. His credibility is also supported because of his substantial experience as a criminal defense attorney; filing a notice of appeal would not have been an unfamiliar, potentially off-putting task for Roberts. Instead, it would have been a routine task.
Roberts's conduct in representing Starkie, as described in his testimony, matches that of an experienced criminal defense lawyer. He met with Starkie and exchanged correspondence and telephone calls to discuss his case. He prepared Starkie for resentencing and counseled him to allocate the progress Starkie had made since his original sentencing. And Starkie received a reduced sentence based on his performance while incarcerated.
Roberts's testimony also shows an effort to make sure that Starkie understood his appeal rights. And Roberts testified that had Starkie said he wanted to go back to court, Roberts would understand that to mean that Starkie wanted to appeal.
In contrast, the evidence does not support either the accuracy or the reliability of Starkie's testimony.
Although Starkie claims he told Roberts after his resentencing that he wanted appeal, the correspondence between the two does not support this assertion. For example, in Roberts's May 15, 2017 letter to Starkie, he lays out his thoughts on the sentence the district court imposed and assessed Starkie's chances to prevail if he were to appeal. Pet. Ex. 5. Roberts's letter concludes "please let me know ASAP if you want to appeal." Id. This language conveys that as of the date of the letter Starkie had not requested Roberts file an appeal on his behalf.
It is worth noting that the letter that Roberts wrote was much longer than the notice of appeal that would have been required to begin the appellate process. The undersigned finds it doubtful that Roberts would have put forth the effort to write this letter instead of the notice of appeal if that is what Starkie had requested.
The record also contains evidence of other letters Starkie sent to Roberts after the entry of the Amended Judgment. Tr. at 174:5-24. Although Starkie requests various documents, he never requests anything related to or mentions an appeal. Given Starkie's active involvement in his case and his penchant for collecting important documents related to it, the fact he did not mention an appeal weighs against his argument that he wanted to pursue one.
Witnesses testimony about Starkie's memory also diminishes the court's ability to rely on his testimony over Roberts's. Nance testified that Starkie had issues with recollecting events. Dr. Wood similarly found that Starkie's memory was unreliable. There was no similar testimony impugning Roberts's ability to remember what had taken place. To the contrary, his testimony was detailed and consistent.
Starkie's also claimed that he did not use the word appeal because he did not know what an appeal was. Tr. at 51:2-6. But Jimmy Nance's testimony contradicted Starkie's claim of ignorance. Nance testified that Starkie told him that he instructed his attorney to file an appeal after the resentencing. Tr. at 85:6-16. Starkie specifically used the word appeal when speaking with Nance. Tr. at 85:17-18. According to Nance, Starkie wanted to appeal to "keep the doors open so that [he] can keep moving with this thing." Id. Nance also testified that although Starkie did not necessarily know "what an appeal involved" he knew that "he need[ed] to do it." Tr. at 85:19-22. Nance's testimony, which the court finds credible, undermines the credibility of Starkie's testimony.
Ultimately, the evidence is more supportive of Roberts's version of events than Starkie's. Thus, the court finds that Roberts's statement that Starkie neither told him to appeal nor told him that he wanted to "go back to court" after his sentencing is more credible than Starkie's testimony to the contrary.
Starkie's correspondence to Roberts after his sentencing also weighs against Starkie's position. In a letter Roberts received on May 22, 2017
Based on the credible testimony from Roberts and Nance, along with Starkie's letter to Roberts stating he did not want to appeal, the undersigned concludes that Starkie has failed to prove by a preponderance of the evidence that he instructed Roberts to file a notice of appeal for him and that Roberts failed to do so. Thus, the undersigned recommends that the court deny this portion of Starkie's § 2255 motion.
Starkie argues that Roberts had a duty to "discover Mr. Starkie's intellectual disabilities and failed to properly or adequately advise him of his right to appeal in language that he would understand." Tr. at 7:20-24. Starkie premises his argument on the fact that he has intellectual deficits; experienced severe violence and trauma as a child; and the court, at sentencing, recommended he receive a mental health assessment.
Starkie has not provided the court with any case law establishing that the Sixth Amendment encompasses the right he seeks to rely on. That alone would be a sufficient reason to deny his request for relief. But assuming such a right existed, Starkie cannot show that Roberts's conduct satisfied the ineffective assistance of counsel standard. Starkie's own expert witness provides the basis for this conclusion.
Dr. Wood explained that he believed that Starkie had issues with comprehension and understanding. But he testified that these issues would not be apparent to an untrained person. Tr. at 145:16-146:12. And Dr. Wood did not believe that an attorney would be able to recognize Starkie's issues of understanding and comprehension. Id. at 153:7-11. Given the extensive education, training, and analysis that would be necessary to determine that Starkie had issues with comprehension and understanding, the court cannot find that Roberts's performance fell below an objective standard of reasonableness because he did not detect them and adjust his representation accordingly.
The testimony also demonstrates that it was reasonable for Robert to believe that Starkie understood the advice he provided about the appellate process.
Roberts testified that, as far as he was aware, Starkie was active and engaged in the preparation for his resentencing. Starkie would write to Roberts and ask him to look at certain cases and ask whether Starkie could rely on the cases during his resentencing. Tr. at 162:13-24. As an example, Roberts read from a letter that Starkie sent him in which Starkie discusses the Supreme Court's decision on Mathis v. United States, 136 U.S. 2243 (2016), his belief that the district court would need to utilize the categorical approach to evaluate his North Carolina kidnapping conviction, and that he did not believe that under the categorical approach the conviction would qualify as a violent felony under the Armed Career Criminal Act. Tr. at 167:-2-23.
According to Roberts, Starkie showed a similar level of engagement and understanding when he and Roberts spoke directly. Tr. at 164:8-12; 179:7-25. Roberts claimed that it appeared that Starkie understood the benefits of being sentenced under a prior version of the Sentencing Guidelines to his overall sentence. Tr. at 162:18-24. During their in-person meeting Roberts detected no issues with Starkie's ability to articulate his thoughts and communicate. Tr. at 180:22-181:1.
In Roberts's opinion, Starkie understood more about his case than similarly situated defendants. Tr. at 164:25-165:5. He claimed that the "level of writings that" he received "from Mr. Starkie is at a level not really seen by most of the folks [he] represent[ed]." Tr. at 167:24-168:1.
Other testimony proves that Starkie could understand his legal proceeding and the importance of an appeal. Starkie's jail-house lawyer, Jimmy Nance, who spent about 100 hours with Starkie, acknowledged that although Starkie did not understand everything involved in an appeal, understood what an appeal was. Tr. at 84:1-3; 58:17-22; 91:20-23.
Starkie focuses on statements by numerous individuals involved in his case that he should receive a mental health assessment. But remarks that a person who witnessed the violent death of both his parents as a child would benefit from mental health counseling does not suggest that Starkie could not understand the legal proceedings or his rights.
Overall, there is no evidence presented here that demonstrates that Roberts should have realized that Starkie could not understand the advice he provided about Starkie's right to appeal the amended judgment. Starkie sent Roberts letters that showed an understanding of his case and complex legal issues related to his resentencing.
After considering all the evidence, the undersigned concludes that Starkie has not shown by a preponderance of the evidence that Roberts's failed to comply with his constitutionally imposed duty to consult with Starkie about an appeal. Thus, the district court should deny this portion of Starkie's § 2255 motion.
For these reasons, the undersigned recommends that the court deny Starkie's motion to vacate (D.E. 154) and amended motion to vacate (D.E. 160) and grant the Government's Motion to Dismiss (D.E. 161).
The undersigned grants the parties' motions for leave to file out of time (D.E. 216, 221). And the undersigned grants Petitioner's motion to expand the record (D.E. 223), admitting exhibits 223-2 through 223-11 into the record of this case. The undersigned denied Petitioner's motion to amend or correct his § 2255 motion (D.E. 217).
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.
