NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0700n.06
Filed: November 17, 2008
No. 05-2135
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KERRY LANE RICHARDS, )
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA, ) WESTERN DISTRICT OF MICHIGAN
)
Respondent-Appellee. )
Before: NORRIS, ROGERS and KETHLEDGE, Circuit Judges.
ROGERS, Circuit Judge. Defendant Richards appeals the district court’s denial of his 28
U.S.C. § 2255 motion alleging ineffective assistance of counsel. Richards argues that his attorney’s
performance was deficient because his attorney did not follow his instructions to appeal his sentence
and, in the alternative, because his attorney did not consult him about the possibility of an appeal but
should have. Richards argues that this deficient conduct prejudiced him, amounting to ineffective
assistance of counsel. The district court’s finding that Richards did not ask his attorney to file an
appeal is not clearly erroneous. Additionally, the attorney’s failure to consult Richards about the
appeal was not prejudicial. Therefore, Richards was not deprived of the effective assistance of
counsel and there is no constitutional error requiring this court to grant his § 2255 motion.
No. 05-2135
Richards v. United States
I.
On December 4, 2002, Richards was charged with a single count of possession with intent
to distribute more than fifty grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(viii). On February 14, 2003, Richards pled guilty pursuant to a plea agreement with the
Government.
Richards’s Presentence Investigation Report (“PSR”) recommended a prison term between
188 and 235 months. The Probation Officer calculated that Richards had a base offense level of 34
and was in Criminal History Category III, producing the 188-235 month range. The Probation
Officer calculated the base offense level by estimating the amount of drugs Richards possessed and
adding an enhancement for the use of a firearm. The Probation Officer specifically noted that
Richards should not receive a downward adjustment to this calculation for acceptance of
responsibility, because Richards had tested positive for drugs after the indictment. Richards made
no objection to these calculations. The plea agreement advised Richards that the Government might
move under Federal Rule of Criminal Procedure 35(b) to reduce Richards’s sentence, if he
cooperated with the Government’s ongoing investigations. However, the Government did not
specifically promise to file such a motion—it only agreed to evaluate Richards’s assistance to see
if a motion was warranted. The Government retained complete discretion over the decision. The
Government never made the motion.
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Richards v. United States
On June 13, 2003, Richards was sentenced to 192 months in prison and 5 years of supervised
release. Richards claims that he was surprised by the length of his sentence and that he had expected
his attorney, Peter Johnson, to object to the PSR calculations. Richards also claims that he was
unaware that his positive drug test would cost him the sentencing credit for acceptance of
responsibility. However, Richards never filed a direct appeal of his sentence.
Richards now alleges that he instructed Johnson to file an appeal of the sentence because it
was unreasonably long. Richards states that immediately after the sentencing, he requested that
Johnson visit him and Johnson never came. Richards states that while at the detention center
following sentencing, he called Johnson several times and requested that Johnson file an appeal.
According to Richards, Johnson told him that it was unnecessary to file an appeal because the
Government was going to file a Rule 35(b) motion for a reduction in Richards’s sentence.
Richards’s father, Kerry Richards Sr., testified that he also called Johnson and told him to file an
appeal and that Johnson assured him he was “taking care of it.”
Johnson testified that Richards took no issue with the sentencing calculations. Moreover,
Johnson testified that Richards knew his sentencing range was between 188-235 months and that he
was not shocked by the 192 month prison sentence. Johnson denied discussing an appeal with either
Richards or his father “within the next ten, twenty days” after sentencing. Johnson stated that he
only discussed the Rule 35(b) motion with Richards. Furthermore, Johnson stated that he was not
an appellate attorney and that he was unaware that there is ten-day time limit to file an appeal from
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Richards v. United States
a federal criminal conviction. Johnson stated that since “I don’t do federal appeals . . . . there’s no
reason for me to be cognizant of those appeal rights.”
Richards filed a § 2255 motion alleging ineffective assistance of counsel because Johnson
failed to honor his request to file an appeal. After an evidentiary hearing on the motion, the district
court reviewed the testimony and the sentencing proceeding. The district court noted that, during
sentencing, Richards did not raise any objections to the PSR and that the court itself told Richards
about his right to appeal. The district court found that “the balance of the evidence does not support”
that Richards told Johnson to appeal his sentence. Furthermore, the district court found that the
evidence did not support that Richards “reasonably demonstrated to counsel he was interested in
appealing,” but rather the evidence indicated that Richards only wanted to appeal a year later when
it was clear the Rule 35(b) motion would not be filed. Nor did the evidence support that there were
any meritorious grounds for appeal. Therefore, the district court found the ineffective assistance
claim failed. This appeal followed.
II.
Richards does not show under Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), that
Johnson’s conduct was objectively unreasonable and that he was prejudiced by that deficient
conduct. Therefore he does not allege “an error of constitutional magnitude” requiring relief under
§ 2255. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (citation omitted). While the
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Richards v. United States
ineffective assistance claim is reviewed de novo, the district court’s findings of fact are not disturbed
unless clearly erroneous. Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir. 2001).
A. Deficient Performance
Richards alleges two theories about Johnson’s deficient performance: 1) that Johnson failed
to follow his instructions to appeal, and, in the alternative, 2) that Johnson failed to consult Richards
about an appeal, which was objectively unreasonable conduct. See Roe v. Flores-Ortega, 528 U.S.
470, 478 (2000). Neither contention has merit.
1. Instruction to Appeal
Richards fails to show that he requested an appeal. “[A] lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts in a manner that is professionally
unreasonable.” Id. at 477 (citation omitted). In these instances, the filing is a “ministerial task,” not
a strategic choice, and therefore “the failure to file reflects inattention to the defendant’s wishes.”
Id. That is not the case here.
The district court’s finding that Richards did not tell Johnson to appeal in a timely fashion
is not clearly erroneous. Richards first claimed that he told Johnson to file the appeal immediately
after sentencing, and later admitted that this statement was false and that he did not discuss the
appeal with his attorney until he called Johnson from the federal detention center. Richards’s father
stated that he requested the appeal as well. Johnson, however, was adamant that no such
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No. 05-2135
Richards v. United States
conversation took place and noted that he did not even handle appeals. The district court found
Johnson’s testimony more credible and that the circumstances indicated that Richards did not want
to appeal until well after the ten-day appeal period. Although the district court based much of its
decision on whether there was a legal basis for an appeal, given the alternative views of the evidence,
the district court’s finding that Richards did not request an appeal is not clearly erroneous.
2. Failure to Consult About an Appeal
Johnson’s failure to consult Richards about an appeal was not objectively unreasonable
conduct. Where the attorney has not consulted with the defendant, the attorney’s failure to do so
may itself constitute deficient performance. See id. at 478. The attorney has a “duty to consult”
when there is reason for him to think “(1) that a rational defendant would want to appeal . . . or (2)
that this particular defendant reasonably demonstrated to counsel that he was interested in
appealing.” Id. at 480. A review of the record shows that this duty did not arise here.
Because there were no nonfrivolous grounds for appeal, Johnson would not have thought a
rational defendant would want to appeal. Id. First, “a guilty plea reduces the scope of potentially
appealable issues.” Id. Richards “received the sentence bargained for as part of the plea.” Id. The
sentence was within the guidelines, which were mandatory at that time, and this fact weighs against
any cause for appeal. See USSG § 1A1.1.A (2003) (invalidated by U.S. v. Booker, 543 U.S. 220
(2005)). Second, although Richards now objects to the methodology used in the PSR, Johnson could
not have known at that time that Richards would want to appeal these issues because Richards did
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Richards v. United States
not raise these concerns at sentencing and these objections are frivolous. The district court was
within its discretion to deny the adjustment for acceptance of responsibility, given that Richards’s
drug use “constituted a continuation of criminal activity that precluded an . . . adjustment.” United
States v. Walker, 182 F.3d 485, 488 (6th Cir. 1999); see also United States v. Zimmer, 14 F.3d 286,
289 (6th Cir. 1994). Also, although the Probation Officer estimated the amount of drugs Richards
possessed, those estimations were based on Richards’s own statements and the Probation Officer
erred on the side of caution.1 See United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990).
Furthermore, the Government’s decision not to file a Rule 35(b) motion did not violate the plea
agreement because the decision to file was within the Government’s discretion. See United States
v. Moore, 225 F.3d 637, 641 (6th Cir. 2000). Even so, because the Government had one year to file
such a motion, this would not have been a reason to appeal during the ten-day appeal period.
Richards has not shown that a reasonable defendant would want to appeal and therefore Johnson’s
failure to consult Richards about the appeal was not objectively unreasonable.
Additionally, it is not clear that Richards was “reasonably . . . interested in appealing.” Roe,
528 U.S. at 480. An attorney may not think the defendant wants to appeal because “a guilty plea
. . . may indicate that the defendant seeks an end to judicial proceedings.” Id. This indication was
bolstered by the fact that Richards did not discuss the matter of an appeal with Johnson until after
1
Although all of the drugs Richards claimed he possessed were converted to marijuana for
sentencing purposes, even if Richards was sentenced solely on the basis of his confessed
methamphetamine possession, he would have received the same base offense level. See USSG §
2D1.1 (2003) (awarding a base offense level of 32 for possession of more than 500 g but less than
1.5 kg of methamphetamines).
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the window to appeal had closed. As discussed above, the district court’s finding of fact on this
point is not clearly erroneous. Also, the district court told Richards that he had a right to appeal
during sentencing. That Richards was aware of the right and did not bring up his desire to appeal
until much later supports that he was not reasonably interested in appealing. “[T]ak[ing] into
account all the information counsel knew or should have known” at the time, id. at 480, Richards
has not shown that Johnson should have known he wanted to appeal and therefore Johnson’s failure
to consult Richards about the appeal was not objectively unreasonable.
While an attorney’s “strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable,” an attorney’s utter failure to investigate
his client’s options is not entitled to the same deference. Strickland, 466 U.S. at 690-91. “[C]ounsel
has a duty to make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary . . . . [A] particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances . . .” Id. at 691. Johnson’s complete lack of knowledge
about appellate procedure makes it doubtful that Johnson actually investigated the option of an
appeal and decided to reject it because it would be futile. Johnson stated that he didn’t “feel there
was any need for an appeal” if the Government was going to make a Rule 35(b) motion. However,
even if Johnson did fail to investigate and that decision was unreasonable, Richards fails to show that
he was prejudiced by Johnson’s deficient conduct.
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B. Prejudice
The record in this case does not support that “counsel’s deficient performance . . . actually
cause[d] the forfeiture of the defendant’s appeal.” Roe, 528 U.S. at 484. Where the defendant
instructed his attorney to appeal, the attorney’s failure to do so satisfies Strickland’s prejudice prong.
Id. at 485; Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) (noting that such an oversight
is a per se Sixth Amendment violation). Where, as here, it is not clear that the defendant did make
such a request, the defendant must show actual prejudice: “a reasonable probability that, but for
counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.”
Roe, 528 U.S. at 484. Richards has not met this burden.
“[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 [the prejudice]
determination.” Id. at 485. First, as previously discussed, there were no nonfrivolous grounds for
appeal in this case and therefore it is unclear that if Johnson had discussed the appeal, Richards
would have pursued it. Richards was awaiting the Government’s motion for a reduced sentence
under Rule 35(b) and given Johnson’s belief that the Government would so move, Richards may
have found it unnecessary to spend time and money on an appeal. Second, Richards was informed
of his right to appeal at sentencing and yet the district court found that he did not “promptly” express
a desire to appeal within the ten-day appeal period following sentencing. As previously stated, that
finding is not clearly erroneous. Richards has not shown that it was reasonably probable that he
would have appealed and therefore that he was prejudiced by Johnson’s allegedly deficient conduct.
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III.
The judgment of the district court is affirmed.
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