D. GORDON BRYANT, JR., Magistrate Judge.
Movant Arnoldo Mendoza Lepez, a federal prisoner, brings this Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. ECF No. 8. The respondent is the United States of America (Government). On July 13, 2018, the United States District Judge referred the matter to the undersigned magistrate judge for the limited purpose of conducting an evidentiary hearing and filing findings of fact and conclusions of law regarding "Movant's sole claim that his trial counsel failed to file a notice of appeal as [Movant] instructed." See ECF No. 9. The district judge also authorized the magistrate judge to appoint counsel "only for the limited purposes of representing Movant at the evidentiary hearing and, if necessary, filing any objections to the Report and Recommendation." Id. at n.1.
On May 17, 2017, the United States of America indicted Lepez on multiple counts. The indictment also contained a forfeiture notice. On June 12, 2017, the court appointed defense counsel for Lepez,
Lepez subsequently entered into a plea agreement with the Government on July 10, 2017, in which he pleaded guilty to Possession with Intent to Distribute 500 Grams or more of Methamphetamine and Aiding and Abetting. On October 13, 2017, Senior United States District Judge Sam R. Cummings sentenced Lepez to serve a term of 405 months in prison, to run consecutively to any sentences imposed in pending state criminal cases in Washington and Oregon, and to run concurrently with any sentence imposed in a state criminal case pending in Lamb County, Texas. Lepez did not file a direct appeal; however, on January 31, 2018, Lepez filed the instant § 2255 motion. Through his motion, Lepez alleges, inter alia, that his trial counsel provided ineffective assistance by failing to file a notice of appeal. Specifically, Lepez contends that "[d]ue to the complexity of the case and the amount of time that [he] received, [he] immediately requested that his Counsel of Record file a timely Notice of Appeal . . . [to] appeal[] his sentence." Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, at 14
With respect to Lepez's allegation that counsel failed to file a requested notice of appeal, the Government requested an evidentiary hearing. ECF No. 6, at 1. Accordingly, on July 13, 2018, the district judge referred this matter to the undersigned United States Magistrate Judge for the limited purpose of conducting an evidentiary hearing and filing findings of fact and conclusions of law in regard to Movant's claim. ECF No. 9.
In accordance with the order of reference, the magistrate judge appointed counsel for the limited purpose of representing Lepez on his claim that defense counsel failed to file a notice of appeal as instructed, and conducted an evidentiary hearing on October 4, 2018. ECF Nos. 10, 11, 18. Both parties were represented by counsel at the hearing. The following individuals testified at the October 4 hearing: (1) Lepez; (2) Lepez's trial counsel; (3) Gracia Fernandez Alcala, Lepez's sister-in-law; and (4) Ray Herrerra, an investigator with the Federal Public Defender's Office. Following the hearing, Lepez filed a "Motion to Supplement the Record with Newly Discovered Evidence." See ECF No. 22. On October 23, 2018, the court held a hearing on the motion, and allowed each party to make an "offer of proof" in the event the court decided to reopen the October 4 record to admit such evidence. See ECF Nos. 27, 28. By separate order, the court has granted that motion. Accordingly, the court considered all testimony and evidence submitted by the parties at both hearings.
Based upon the testimony and evidence presented at the hearings, a review of court records related to this matter, and the applicable law, the undersigned submits the following findings of fact and conclusions of law.
The Sixth Amendment guarantees criminal defendants the right to "reasonably effective" legal assistance, both at trial and on appeal. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish a claim for ineffective assistance of counsel, a movant must satisfy the "now-familiar" Strickland test and demonstrate that: (1) his attorney's representation "fell below an objective standard of reasonableness"; and (2) he was prejudiced by his counsel's deficient performance. Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (quoting Strickland, 466 U.S. at 687-88). A movant's failure to satisfy either prong of the Strickland test is generally fatal to his claim. Strickland, 466 U.S. at 700; see United States v. Bejarano, 751 F.3d 280, 285 (5th Cir. 2014).
The Strickland test applies to Lepez's claim "that counsel was constitutionally ineffective for failing to file a notice of appeal." Flores-Ortega, 528 U.S. at 477. An attorney's failure to file a requested notice of appeal "is per se ineffective assistance of counsel, with or without a showing that the appeal would have merit." United States v. Tapp, 491 F.3d 263, 265-66 (5th Cir. 2007) (citing Flores-Ortega, 528 U.S. at 483-86) (noting that the Flores-Ortega standard applies "even where a defendant has waived his right to direct appeal and collateral review"). Thus, if a movant establishes by a preponderance of the evidence that he asked his attorney to file a notice of appeal, and his attorney did not, prejudice is presumed. Id. at 266. An attorney's "duty to perfect an appeal on behalf of a convicted client," however, "does not arise on conviction. . . ." Childs v. Collins, 995 F.2d 67, 69 (5th Cir. 1993). Instead, the client must clearly communicate to his attorney, in a timely manner, that he wants to appeal. See id. (affirming denial of movant's ineffective assistance of counsel claim where movant failed to communicate to counsel his desire to appeal his criminal conviction); see also United States v. Rivas, 450 F. App'x 420, 424 (5th Cir. 2011) (citing White v. Johnson, 180 F.3d 648, 652 (5th Cir. 1999)) (explaining that the Fifth Circuit has "avoided a bright line rule requiring criminal defense counsel to perfect an appeal in every criminal conviction").
Here, the undersigned finds for multiple reasons that Lepez has failed to demonstrate by a preponderance of the evidence he instructed defense counsel to file an appeal. In his Motion, signed under penalty of perjury, Lepez alleges that due to the amount of time he received he "immediately requested that his Counsel of Record file a timely Notice of Appeal" concerning his sentence. Motion, at 14 (emphasis added). Conversely, Lepez testified under oath at the § 2255 hearing that he asked counsel prior to sentencing to file an appeal but did not do so after sentencing, merely alleging that trial counsel indicated he would visit him in jail.
The court further credits the testimony of Lepez's trial counsel who, as an officer of the court, testified that Lepez did not instruct him to appeal at any time prior to sentencing, and that Lepez did not ask counsel post-sentencing, either in person or through phone calls or a message from Lepez's family, to file an appeal. See Brown, 727 F.3d at 341; see also Baumgartner v. United States, No. 2:09-CV-015, 2011 WL 3652335, at *5 (N.D. Tex. Aug. 3, 2011) (weighing attorney's testimony over that of defendant in part because attorney is an officer of the court and defendant "has much more to gain or lose by the outcome of [his] § 2255 motion). Lepez's evidence concerning his communications to defense counsel regarding a possible appeal is contradictory, and the corroborated evidence merely shows that, at best, Lepez attempted to contact counsel via telephone to discuss an appeal.
In sum, the undersigned finds that Lepez has failed to demonstrate by a preponderance of the evidence that he clearly asked defense counsel to appeal his criminal sentence. Accordingly, the district court should not grant Lepez relief on this basis.
Where a movant does not specifically direct his attorney to file an appeal, as in this case, the court may still have an obligation to determine whether his attorney failed to adequately consult with him regarding an appeal. See, e.g., Flores-Ortega, 528 U.S. at 478 ("In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal."); Lopez-Lara v. United States, Civil Action No. B-13-178, 2014 WL 11531891, at *11 (S.D. Tex. Aug. 7, 2014) (explaining that the court was required to determine whether movant's attorney had a duty to consult regarding an appeal, despite movant's failure to ask his attorney to file an appeal). "In this context, `consult' means that counsel tendered advice about the advantages and disadvantages of appealing and made a `reasonable effort to discover' the defendant's wishes on the issue." United States v. Calderon, 665 F. App'x 356, 364 (5th Cir. 2016). "[T]here is no mechanical rule that consultation must always follow sentencing, but counsel's cursory discussion before sentencing [does] not compensate for the complete failure to mention the possibility of appeal after sentencing." Esquivel v. United States, No. 3:15-cv-553-D-BN, 2016 WL 6902150, at *5 (N.D. Tex. Oct. 3, 2016) (quoting United States v. Pham, 722 F.3d 320, 324 n.16 (5th Cir. 2013)) (emphasis in original) (internal quotation marks omitted). Additionally, the Supreme Court has noted that "district courts would find a duty to consult `in the vast majority of cases.'" Pham, 722 F.3d at 324.
The first Strickland prong, known as the "performance" prong, "begins with the question whether counsel `consulted' with the defendant regarding an appeal." Id. at 323 (quoting Flores-Ortega, 528 U.S. at 478). Where an attorney fails to consult with a client regarding an appeal, "then the question is whether that failure was unreasonable because it breached the duty to consult." Id. at 324; see also Flores-Ortega, 528 U.S. at 478 (explaining that even where an attorney "has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel's failure to consult with the defendant itself constitutes deficient performance"). An attorney "has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are non-frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Pham, 722 F.3d at 324 (quoting Flores-Ortega, 528 U.S. at 480). The court must assess an attorney's duty to consult "in light of `all the information counsel knew or should have known.'" Id. (quoting Flores-Ortega, 528 U.S. at 480). "Whether the conviction followed a trial or a guilty plea is `highly relevant,' although not determinative, as is whether the defendant waived his right to appeal and whether he received a sentence for which he bargained." Id. (quoting Flores-Ortega, 528 U.S. at 480).
When an attorney breaches his constitutionally-imposed duty to consult, the court will not presume prejudice. Hurrelbrink, 2017 WL 1683663, at *2 (citing Flores-Ortega, 528 U.S. at 484); Esquivel, 2016 WL 6902150, at *4. Instead, "under Flores-Ortega, a defendant satisfies the second Strickland prong [the "prejudice" prong] if he shows `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.'" Pham, 722 F.3d at 324 (quoting Flores-Ortega, 528 U.S. at 484). "A reasonable probability is a probability sufficient to undermine confidence in the outcome," which requires a "substantial," not just "conceivable" likelihood of a different result. Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at 694). "[E]vidence that there were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination." Flores-Ortega, 528 U.S. at 485. To establish prejudice, however, a defendant need not "demonstrate that his hypothetical appeal might have had merit. . . ." Id. at 486. The Fifth Circuit has held that "Flores-Ortega applies `even where a defendant has waived his right to direct appeal and collateral review.'" Bejarano, 751 F.3d 285 (quoting Tapp, 491 F.3d at 266).
The evidence is unclear as to the precise extent defense counsel consulted with Lepez regarding any appeal. At the evidentiary hearing, defense counsel generally stated that he reviewed the terms of the plea agreement with Lepez, which contained a waiver-of-appeal provision, prior to his guilty plea on July 10, 2017.
The court must therefore determine whether defense counsel had a constitutionally imposed duty to consult with Lepez regarding an appeal, and examine whether (1) Lepez reasonably demonstrated to counsel that he was interested in appealing, or (2) a rational defendant would want to appeal. Pham, 722 F.3d at 324 (quoting Flores-Ortega, 528 U.S. at 480). The court must assess this duty "in light of `all the information counsel knew or should have known.'" Id.
Initially, the undersigned notes Lepez offered little in the way of evidence suggesting his immediate post-sentencing actions should have triggered trial counsel's duty to investigate Lepez's desire to appeal. Specifically, Lepez did not allege that he was visibly dissatisfied, or that he voiced complaint to counsel, post-sentencing. See, e.g., United States v. Casarez, 304 F. App'x 325, 325 (5th Cir. 2008) (per curiam) (explaining that movant failed to reasonably demonstrate to counsel he was interested in appealing where, although movant "was upset about sentencing matters before and after the sentencing hearing, [movant] did not express to counsel any interest in appealing the sentence either when [movant] spoke to counsel after the sentencing hearing or when [movant] called counsel's office"); Hurrelbrink, 2017 WL 1683663, at *4-5 (distinguishing Pham and explaining that movant failed to establish the first Strickland prong where movant, despite being dissatisfied with her sentence, did not indicate a desire to take any action to appeal); United States v. Washington, Criminal Action No. 11-235, 2014 WL 5179601, at *7 (E.D. La. Oct. 14, 2014) (holding that attorney's failure to consult with movant regarding an appeal did not breach a constitutional duty where movant presented no credible evidence establishing that he conveyed to his attorney an interest in appealing).
Despite the paucity of evidence concerning Lepez's immediate response to the sentence, the undersigned believes trial counsel's testimony at the § 2255 hearing requires a finding in Lepez's favor on this issue. The undersigned has previously found Lepez made no statement to defense counsel at or following sentencing indicating that Lepez wanted counsel to file an appeal. Neither party disputes, however, that trial counsel's office received a phone call from Lepez four days after sentencing, and for what counsel admitted at the § 2255 hearing was most likely a call regarding an appeal. Trial counsel admitted that his office staff would have known the phone call they received, within the fourteen day period for filing an appeal, would have in fact been from Lepez as the recording identified the Jail as the source of the call and Lepez was the only client they had there at the time.
Because Lepez has established the first Strickland prong, the court must now analyze the second Strickland prong—whether there is a reasonable probability he would have appealed, regardless of whether his appeal had merit. See Bejarano, 751 F.3d at 286. In Flores-Ortega, the Supreme Court recognized that in many cases, "the performance and prejudice prongs may overlap, [but] they are not in all cases coextensive." 528 U.S. at 486. Thus, "although showing nonfrivolous grounds for appeal may give weight to the contention that the defendant would have appealed," a defendant may also "satisfy the prejudice requirement when there are other substantial reasons to believe that he would have appealed." Id.
Lepez relies on the following facts to establish prejudice: (1) the PSR guideline sentencing range and the sentence he actually received were both higher than originally anticipated due to a sentencing enhancement for importation (the objection to which was overruled at sentencing); (2) the two phone calls Lepez attempted to make to defense counsel four days after sentencing; and (3) his statement that he would have appealed but for counsel's allegedly deficient performance. These facts suggest a reasonable probability that Lepez would have appealed. Reinforcing this conclusion is trial counsel's testimony that given the timing of Lepez's attempted phone calls to his office and cell phone, Lepez was likely inquiring about an appeal. Moreover, Lepez filed his pro se § 2255 Motion—which identifies as error, inter alia, a two-level sentencing enhancement for drug importation, a factor first identified in the PSR and that served as the basis for increasing his maximum guideline range from 327 months to 405 months—approximately three months after sentencing, when he learned from his family that a direct appeal had not been filed. Motion, at 14. Lepez's filing of the Motion shortly after sentencing, in conjunction with the attempted phone calls, higher than expected sentence due to an enhancement, and testimony that he would have appealed, is sufficient to undermine confidence in a conclusion that, had defense counsel sufficiently consulted with Lepez, an appeal would not have been filed. Bejarano, 751 F.3d at 286-87; see Flores-Ortega, 528 U.S. at 486; Esquivel, 2016 WL 6902150, at *8 (finding petitioner demonstrated prejudice where he testified he would have directed counsel to appeal the drug weight amounts if counsel had consulted with him, and petitioner filed a pro se motion to reduce his sentence three months post-sentencing); Garcia v. United States, 2:13-CV-0019, 2015 WL 9872538, at *3 (N.D. Tex. Dec. 30, 2015) (finding that where an attorney does not complete a consultation by making a reasonable effort to determine whether the defendant wants to appeal, and the defendant demonstrates prejudice, the defendant is entitled to an out-of-time appeal).
Accordingly, the court finds that Lepez has, by a preponderance of the evidence, demonstrated that there is a reasonable probability he would have appealed but for defense counsel's failure to consult. The district court should therefore conclude that Lepez has proven the prejudice prong of Strickland.
For the foregoing reasons, the undersigned recommends that the United States District Court should find that defense counsel's performance did not fully satisfy the requirements of the Sixth Amendment as outlined by the Supreme Court in Flores-Ortega and applied in this circuit by Pham, and grant Lepez's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody to allow Lepez to file an out-of-time appeal.
A copy of this Report and Recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this Report and Recommendation must file specific written objections within fourteen days after being served with a copy. See 28 U.S.C. § 636(b)(1) (2016); Fed. R. Civ. P. 72(b). To be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's Report and Recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
