United States District Court, E.D. Texas
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
A. CRONE UNITED STATES DISTRICT JUDGE.
Omigie filed this motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255. The court
previously referred this matter to the Honorable Zack
Hawthorn, United States Magistrate Judge, for consideration
pursuant to applicable laws and orders of this court.
the grounds for review asserted by movant was that he
received ineffective assistance of counsel because counsel
failed to file a notice of appeal on his behalf. The
magistrate judge has submitted a Report and Recommendation of
United States Magistrate Judge recommending that movant be
allowed to file an out-of-time appeal but dismissing the
motion to vacate without prejudice in all other respects.
(#33 at 6).
court has received the Report and Recommendation, along with
the record, pleadings, and all available evidence. The
government filed objections. (#36). The court must therefore
conduct a de novo review of the objections in
relation to the pleadings and the applicable law.
appointing counsel to represent movant, the magistrate judge
conducted an evidentiary hearing. Movant and his counsel
testified at the hearing. Movant testified that he told
counsel during a meeting on April 30, 2015, that he wanted to
proceed with an appeal and instructed counsel to file a
notice of appeal on his behalf. Counsel testified movant did
not instruct him to file a notice of appeal at this meeting.
magistrate judge observed that both of the witnesses provided
credible testimony without internal inconsistencies. However,
because there were contestable issues with respect to
determinations made by the court in connection with
sentencing, issues which if resolved in movant's favor on
appeal could have resulted in a significantly shorter
sentence, the magistrate judge concluded movant had reason to
proceed with an appeal and little reason to forego an appeal.
The magistrate judge therefore found by a preponderance of
the evidence that movant instructed his counsel to file a
notice of appeal and counsel failed to do so.
the government faults the magistrate judge for finding
movant's testimony credible. The government states that
in an affidavit he filed in support of his motion to vacate,
movant did not state he instructed counsel to file a notice
of appeal. The government also states that in the brief filed
in support of his motion to vacate, movant never claimed he
instructed counsel to file a notice of appeal during the
April 30 meeting. Instead, movant simply referred to a letter
written by counsel, dated May 5, 2015, as support for his
view that the letter itself provided assurance that counsel
would file a notice of appeal. Movant confirmed at the
hearing that he interpreted the letter this way. The
government further points out that in his brief movant said
he understood counsel would require an additional $20, 000 to
handle the appeal and that movant did not have that kind of
money. The government wonders why, if that was movant's
understanding, he thought counsel was going to file a notice
of appeal on his behalf. The government points out that
movant never took advantage of the sentencing court's
statement that movant could proceed with an appeal on an
in forma pauperis basis and that if movant did so
the clerk could file a notice of appeal for him.
government correctly points out that in his brief and an
affidavit, movant does not state he asked counsel to file a
notice of appeal. However, in his motion to vacate itself,
movant states counsel failed to file a notice of appeal,
contrary to his wishes. (#1 at 4). As movant's written
documents were filed pro se, it is not surprising
that all of his documents do not state every relevant factual
assertion. None of movant's written documents give any
indication that he did not ask counsel to file a notice of
appeal. Moreover, movant testified that while he instructed
counsel to file a notice of appeal, he did not ask him to
represent him on appeal. (#32 at 42). Thus, whether movant
could have afforded counsel's fee would have been
irrelevant to his expectation that a notice of appeal would
be filed. Finally, if movant asked counsel to file a notice
of appeal, there would have been no need for him to seek to
proceed in forma pauperis in order have the clerk
file the notice.
government also points to inconsistencies in movant's
testimony. The government states that after twice indicating
he believed the letter assured him counsel would file a
notice of appeal, he also stated the terms of the letter
contained no such assurance and that the letter made it clear
that at the time of the writing of the letter, counsel did
not know whether movant wanted him to file a notice of appeal
it should be observed that movant denied that the letter
memorialized what counsel told him in person. (#32 at 35).
Movant acknowledged he had cited the letter as support for
the point that assurances had been made that a notice of
appeal would be filed. (#32 at 37). He further acknowledged
the letter indicated it was not clear to counsel whether
movant wanted him to file a notice of appeal. (#32 at 40).
Finally, he stated the terms of the letter gave no assurance
that counsel would file a notice. (#32 at 40-41).
inconsistency the government points to is a minor one. While
movant had cited the letter as support for his assertion that
he had assurances a notice of appeal would be filed, he
admitted the terms of the letter gave no such assurance.
While that is an inconsistency, it is only an inconsistency
regarding what the letter says. It does not call into
question movant's repeated assertions at the hearing that
he instructed counsel to file a notice of appeal.
government also faults the magistrate judge's rationale
for finding movant's testimony more credible. The
government states that as the magistrate judge found both
witnesses were credible, movant's testimony could not
have been more credible by a preponderance of the evidence.
The government contends the magistrate erred by concluding
that since movant had motivation to proceed with an appeal,
he therefore instructed his counsel to file a notice of
appeal. The government states that while an attorney must
comply with express instructions from a client to file a
notice of appeal on his behalf, Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000), the law does
not provide that if a defendant had reason to appeal he must
have instructed his attorney to file a notice of appeal.
government misconstrues the magistrate judge's rationale.
The magistrate judge did not conclude that if a defendant has
reason to appeal he must have instructed his attorney to file
an appeal. Rather, the magistrate judge concluded that based
on movant's testimony, and the fact that he had
motivation to file an appeal and no incentive not to, it was
more likely than not that he instructed counsel to file a
notice of appeal.
issue in this case is not free from doubt. However, the court
cannot conclude the magistrate judge erred in finding by a
preponderance of the evidence that movant instructed counsel
to file a notice of appeal. Movant's motivation to
proceed with an appeal of the sentencing issues described in
the Report and Recommendation, which could have significantly
reduced his sentence, ...