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Gross v. United States

United States District Court, N.D. Texas, San Angelo Division

July 29, 2019

ROBERT HADLEY GROSS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER SENIOR JUDGE.

         Before the court is the United States Magistrate Judge's February 27, 2019 findings, conclusions, and recommendation and movant Robert Hadley Gross's (“Gross's”) March 13, 2019 objections. After making an independent review of the pleadings, files, and records in this case, and the findings, conclusions, and recommendation of the magistrate judge, the court concludes that the findings and conclusions are correct in part. It is therefore ordered that the findings, conclusions, and recommendation of the magistrate judge are adopted in part, and, to the extent the court disagrees with the magistrate judge's findings, conclusions, and recommendation, the case is re-referred to the magistrate judge for further proceedings.

         I

         Without suggesting that the court agrees in every respect with the magistrate judge's analysis, the court concludes on plain error review[1] that the magistrate judge is correct in recommending that the court deny Gross's motion for relief under 28 U.S.C. § 2255 on the ground that the pretrial restraint of his untainted assets denied Gross his right to counsel of choice within the meaning of Luis v. United States, U.S., 136 S.Ct. 1083 (2016). It is therefore ordered that the recommendation of the United States Magistrate Judge is adopted as to this ground of Gross's motion.

         II

         Gross also seeks relief under § 2255 on the ground that his appointed trial counsel, Sherylynn A. Kime-Goodwin, Esquire (“Kime-Goodwin”), was ineffective for failing to file an appeal as instructed[2] and for failing to properly consult with Gross about an appeal.

         A

         The Sixth Amendment guarantees “reasonably effective” legal assistance. See Strickland v. Washington, 466 U.S. 668, 687 (1984). “To show ineffective assistance, the two-prong Strickland test requires a defendant to show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) such deficient performance prejudiced the defendant.” United States v. Cong Van Pham, 722 F.3d 320, 323 (5th Cir. 2013) (citing Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000)). “In Roe v. Flores-Ortega, the Supreme Court elucidated how the Strickland test applies in the context of counsel's failure to file an appeal ‘when the defendant has not clearly conveyed his wishes [regarding an appeal] one way or the other.'” Id. (alteration in original) (quoting Flores-Ortega, 528 U.S. at 477).

         Under Flores-Ortega the first Strickland prong begins with the question whether counsel “consulted” with the defendant regarding an appeal. Flores-Ortega, 528 U.S. at 478. “‘Consulting' is a term of art that means ‘advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes.” Pham, 722 F.3d at 323 (quoting Flores-Ortega, 528 U.S. at 478). “If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal.” Flores-Ortega, 528 U.S. at 478.

         “If, however, counsel failed to consult with the defendant about an appeal, then the question is whether that failure was unreasonable because it breached the duty to consult.” Pham, 722 F.3d at 324. “[C]ounsel 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 nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Flores-Ortega, 528 U.S. at 480. “The existence of a duty to consult is assessed in light of ‘all the information counsel knew or should have known.'” Pham, 722 F.3d at 324 (citing 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). “The Supreme Court predicted that district courts would find a duty to consult ‘in the vast majority of cases.'” Id. (quoting Flores-Ortega, 528 U.S. at 481).

         B

         In her findings, conclusions, and recommendation, the magistrate judge determined that Kime-Goodwin had sufficiently consulted with Gross regarding an appeal. The magistrate judge found that

Ms. Kime-Goodwin's discussion of appellate rights pre-sentencing, combined with the Court's discussion and Gross's understanding of appellate rights during sentencing and Ms. Kime-Goodwin's contact with the defendant immediately following sentencing, all indicate that Gross could have intelligently and knowingly asserted his right to an appeal if he had wanted to do so. The Court finds that Gross, however, realized there was “nothing to ...

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