United States District Court, E.D. Oklahoma
REPORT AND RECOMMENDATION
P. Shreder United States Magistrate Judge
Plaintiff Kevin Bernard Greed pleaded guilty to a drug
conspiracy pursuant to 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), and 846. He was sentenced to imprisonment for a
term of 132 months, followed by a term of supervised release
of 60 months, as well as a $100.00 special assessment. No.
direct appeal was filed. Green (the plaintiff or petitioner
in this case, and the defendant in No. CR-15-37-RAW-1,
referred to herein as “the Defendant”) now seeks
post-conviction relief pursuant to 28 U.S.C. § 2255. The
District Judge has referred the Defendant's amended
petition to the undersigned Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) for an evidentiary hearing and a
report and recommendation. The undersigned Magistrate Judge
heard evidence on April 10, 2019. For the reasons set forth
below, the undersigned Magistrate Judge now recommends that
the Defendant be denied relief under 28 U.S.C. § 2255.
2015, the Defendant was charged by way of a fourteen-count
indictment for a drug conspiracy (Count 1) and use of a
communication device in furtherance of drug trafficking
(Counts 2-14). The indictment also contained a drug
forfeiture allegation. The Defendant pleaded guilty without a
plea agreement to Count 1 before United States Magistrate
Judge Kimberly E. West on July 27, 2015. At the plea hearing,
the Government, through Assistant U.S. Attorney Shannon
Henson indicated that the Defendant's preliminary
advisory Guideline calculation range was 120 months
imprisonment. Defendant's counsel, Terry Weber, agreed
that it was “in the realm of possibilities”
despite some arguments about quantities of drugs.
See Docket No. 5, p. 129. The Defendant indicated he
understood this and provided a factual basis for his plea.
Defendant was sentenced by Chief U.S. District Judge Ronald
A. White on January 7, 2016. Prior to sentencing, the U.S.
Probation office filed a Pre-Sentence Report
(“PSR”), to which the Defendant had objected. At
the sentencing hearing, AUSA Henson objected to a two-point
reduction for acceptance of responsibility, which the Court
overruled as untimely. The Court further noted that there had
not been a motion for a third point as to acceptance of
responsibility, and therefore there was nothing to rule on as
the motion for the third point was in the discretion of the
U.S. Attorney's office. Based on this amendment, the
Court found that the Defendant had a sentencing Guideline
range of 97 to 121 months. See Docket No. 5, pp.
144-146. AUSA Henson then called two witnesses as to the
Defendant's objections to the PSR. First, Willie Wartson
testified that he knew the Defendant and that he would buy
approximately eighteen ounces of cocaine powder from the
Defendant about once a week, that he saw the Defendant with
kilo quantities, and that the Defendant was his main source
of supply. Id. at pp. 155-157. Mr. Wartson had
originally provided this information during an interview on
July 30, 2014, then recanted his original statement on May
11, 2015 after learning he had been accused of being a
snitch. On May 20, 2015, Mr. Wartson then recanted his
recantation, affirmed his original statement, and agreed to
testify at the Defendant's sentencing hearing.
Id. at pp. 156-165. AUSA Henson confirmed with Mr.
Wartson that he had agreed to file a Rule 35 motion seeking a
reduction of sentence for Mr. Wartson's testimony at the
Defendant's sentencing. Id. at pp. 172.
Oklahoma Bureau of Narcotics Agent John Morrison testified
that he interviewed the Defendant on October 13, 2015, and
believed that the Defendant had not been truthful at that
meeting. See Docket No. 5, pp. 175, 181. At the
October 2015 meeting, the Defendant told Agent Morrison that
Duran Delt was not his cocaine supplier, that he did not know
the supplier for powder cocaine, and that he got it from a
“middle man” named Adrianna Hill, and then he
would sell it back to her and others. Agent Morrison
testified that this was strange because this would make the
cocaine more expensive for Ms. Hill than if she just
purchased it from the supplier directly. Id. at p.
179. Further, the Defendant had told Agent Morrison that he
did not know how to turn powder cocaine into cocaine base,
and that he had never been in possession of kilo quantities
of cocaine. Id. at p. 181. Agent Morrison stopped
the interview at this point because he believed the Defendant
was not being truthful. Agent Morrison believed that Duran
Delt was the Defendant's supplier, based on an
earlier interview with Mr. Wartson, facts learned in wire
intercepts, and an interview with Defendant's
co-conspirator Elijah Mayes. Id. at p. 182. He also
believed the Defendant had sold cocaine base to
Adrianna Hill, based on interviews with her and facts learned
during wire intercepts. Id. at pp. 182-183. Finally,
he testified as to calls intercepted and that the contents of
those phone calls related to Defendant selling drugs and the
quality of those drugs. Id. at pp. 187-190.
Defendant then testified at the sentencing hearing that he
did not sell powder cocaine to Mr. Wartson in 2013, and that
he believed Mr. Wartson had testified about this in
retaliation for the Defendant having an affair with Mr.
Wartson's girlfriend. He also testified that Duran Delt
was just a good friend of his family. Id. at pp.
206-209. Upon cross examination, the Defendant was unable to
explain why Mr. Wartson became aware of the affair in early
2014 but did not provide information as to the Defendant
until July 2014, after Mr. Wartson's March 2014
sentencing. When confronted with statements by Elijah Mayes,
Adrianna Hill, and Mr. Wartson, the Defendant asserted that
they had all lied and that he had just been the middle man.
Additionally, the Defendant testified that he had lied at his
own change of plea hearing when he stated the amount of drugs
he was responsible for. Id. at pp. 212-217.
on the evidence and testimony at the sentencing hearing,
including that the Defendant lied at the Rule 11 hearing in
October 2015, the Government asserted that the Defendant was
not eligible for the two-level safety valve decrease.
Defendant's counsel argued that Mr. Wartson's
testimony should be rejected, which would have lowered the
amount of powder cocaine attributed to the Defendant by 936
ounces, making the Defendant eligible for safety valve
relief. Id. at pp. 217-218, 222. AUSA Henson then
pointed out that the Defendant had lied, either at the plea
hearing or at sentencing, by his own admission. Id.
at p. 225.
Court then found that the information provided by Mr.
Wartson's testimony regarding drug quantities was
relevant conduct and that the quantities were appropriately
included in the drug quantity calculations in the PSR, and
therefore overruled the Defendant's objections to the
drug quantities. Id. at p. 227. The Court could not
find that the Defendant met all the necessary criteria for
safety valve relief, specifically the provision requiring the
Defendant to truthfully provide all information and evidence
to the Government concerning the offense or offenses that
were part of the same source of conduct or of a common scheme
or plan. The Court then overruled the Defendant's
objection. Id. at p. 229. Finding that the Defendant
lied while under oath either at the plea hearing or at the
sentencing hearing, the Court then found the Defendant
qualified for a two-level enhancement for obstruction of
justice, resulting in a two-level enhancement from level 30
to level 32, making the Guidelines range 121 to 151 months.
Id. at pp. 229-230. The Court then dismissed Counts
2-14 in the Indictment. The Court noted that the sentencing
hearing had resulted in an unexpected increase in the offense
level. Defendant's counsel noted his minimal criminal
history, quick plea, and the lack of guns in the conspiracy,
and argued that the mandatory minimum 120 months was
sufficient. Id. at p. 232-233. The Court sentenced
the Defendant to 132 months' imprisonment on Count 1,
followed by a term of supervised release of five years.
Id. at p. 234. At the close of the hearing, the
Court instructed the Defendant that he had fourteen days to
appeal his sentence, and that Mr. Weber would remain his
attorney during that time. Id. at p. 237.
Green has raised a claim of ineffective assistance of counsel
for failing to file an appeal following his plea and
sentence. With regard to such a claim, Barrett must
demonstrate that the performance of his trial attorneys fell
below an objective standard of reasonableness, and that he
was prejudiced thereby. Strickland v. Washington,
466 U.S. 668, 687 (1984). Because the Defendant asserted that
he instructed his attorney to file an appeal and the
Government had responded by provided an affidavit from Mr.
Weber indicating that the Defendant never instructed him to
file an appeal, the Court referred this matter for an
evidentiary hearing, Terry Weber, the Defendant's counsel
from his criminal case, was called to testify. As to his
experience, Mr. Weber testified that he was licensed in
Oklahoma in 1983 that his litigation practice had involved
federal criminal appointments since 1995. He further
testified that he has filed over fifty criminal appeals in
federal courts and has argued criminal appeals before the
Tenth Circuit four or five times. Mr. Weber further testified
that he represented the Defendant in the 2015 underlying
criminal case, that the Defendant had pleaded guilty without
a written plea agreement, and that he had therefore not
waived his right to appeal. Mr. Weber testified that he did
not file an appeal for the Defendant, did not consult with
the Defendant as to whether he wanted to appeal, and did not
visit the Defendant to speak with him after the sentencing
hearing. Mr. Weber testified that, while he had previously
received phone calls from the Defendant's family members,
neither the Defendant nor his family members contacted him
after sentencing regarding the filing of an appeal. He
further stated that he took no steps following sentencing to
ascertain whether the Defendant want to appeal, that he did
not think he had a duty to consult about an appeal, and that
he did not believe there was an appellate issue. Mr. Weber
testified that he generally discusses the appellate procedure
with clients when the issues come up with motions or
discovery issues but had no specific recollection of those
conversations with this Defendant, and he confirmed that no
such conversations took place after the Defendant's
sentencing hearing. On cross-examination, Mr. Weber agreed
that if he had seen an appellate issue, he would have
discussed that with the Defendant.
Defendant's ineffective assistance of counsel claim
centers on his assertion that his counsel failed to file a
notice of appeal for him. Claims for ineffective assistance
of counsel are governed by the standard announced by the
Supreme Court and set forth in Strickland v.
Washington, 466 U.S. 668 (1984), requiring the Defendant
to “show that counsel's representation fell below
an objective standard of reasonableness.” Id.
at 687. “Judicial scrutiny of counsel's performance
must be highly deferential.” Id. at 689. To
prevail on a claim for ineffective assistance of counsel, the
Defendant: (1) “must show that counsel's
performance was deficient[, ]” and (2) “that the
deficient performance prejudiced the defense.”
Id. at 687.
violation of the Strickland standard is clear where
an attorney disregards “specific instructions from the
defendant to file a notice of appeal.” Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000). A violation of
Strickland is much less clear when the Defendant
“has not clearly conveyed his wished one way or the
other.” Id. In that case, “where the
defendant neither instructs counsel to file an appeal nor
asks that an appeal not be taken, ” the Supreme Court
held that the first question to be addressed is
“whether counsel in fact consulted with the defendant
about an appeal.” Id. at 478. “If
counsel has not consulted with the defendant, the court must
in turn ask  whether counsel's failure to consult with
the defendant itself constitutes deficient
performance.” Id. Thus rejecting a
“bright-line rule, ” the Supreme Court instead
held that “counsel has a constitutionally imposed duty
to consult with the defendant about an appeal when there is
reason to think either (1) ...