On November 12, 2004, defendant entered a guilty plea to the indictment charging him with being a felon in possession of a firearm. Objections to the pre-sentence report were filed on January 28, 2005.*fn1 Defendant was sentenced on March 1, 2005, to 180 months imprisonment to be followed by four years of supervised release and a $100 special assessment. The judgment and commitment was filed on March 7, 2005, and entered on the docket on March 9, 2005.
On April 27, 2005, defendant filed a motion to proceed in forma pauperis ("IFP") in which he declared that he was filing a motion under 28 U.S.C. §2255. The motion reflected that it was executed by defendant on March 10, 2005. By order filed on May 4, 2005, the Court granted that IFP motion.
Defendant, on July 21, 2005, filed a motion for leave to appeal on the grounds that he improperly sent his notice of appeal to the prosecutor instead of the Clerk, that he had stated at his sentencing that his attorney had failed to provide him with adequate and effective assistance of counsel, that he was requesting that the motion be official notification as a request to have his notice of appeal properly documented, and that counsel be appointed in filing a direct appeal.
By order filed on July 27, 2005, the Court denied his motion as the period for appealing had expired that March and his motion was clearly outside the time-frame provided for an extension so that an appeal was simply unavailable to defendant at that time and the Court was without the authority to grant him leave to appeal.
Defendant next filed a motion, on December 14, 2005, for a copy of his trial transcript as he was planning to file a motion, under 28 U.S.C. §2255 to vacate, set aside or correct sentence. By order filed on December 29, 2005, the Court denied that motion.
On March 3, 2006, defendant did file a motion, under 28 U.S.C. §2255, to vacate, set aside or correct sentence. He alleges that his counsel rendered ineffective assistance by failing to file a notice of appeal as specifically instructed to do so by defendant and failing to notify defendant of the refusal to file the notice of appeal so that it was too late when defendant attempted to do so himself. Defendant also asserts that his counsel failed to adequately present objections to the criminal history of defendant which resulted in the enhancement of being an armed career criminal. In his final claim, defendant contends that his counsel failed to utilize a recent Supreme Court decision relating to the Sixth Amendment right to a jury establishing all facts that are utilized in enhancing a sentence which violated the reasonable doubt standard. As relief, he asks that he be re-sentenced without the armed career offender enhancement for a total of 77-96 months.
Defendant filed a supporting brief on March 17th, stating first that his motion was timely filed under the mail box rule on February 28, 2006. He continues that he expressly instructed his attorney, Faber Jenkins, to file an appeal and also points to his attempt to send a pro se notice of appeal, and seeking in forma pauperis status and appointment of counsel. Defendant argues that the failure to file an appeal in disregard of the defendant's request is ineffective assistance of counsel regardless of whether the appeal would have been successful or not. He asserts that in the event the government obtains an affidavit from Jenkins, a hearing is needed to show that Jenkins failed to perfect the appeal.
Defendant also asserts that Jenkins failed to adequately factual and legal objections to defendant's Criminal History resulting in the enhancement of being an armed career criminal as Paragraphs 8, 23, 24, and 26 could not be properly substantiated by documentation and that one of the predicate offenses was invalid and erroneous. He specifies that the prior offense charging documents and statute of conviction were erroneous and did not meet the standard of the "categorical approach;" that the government's use of the documents such as the police reports, presentence reports or complaints did not conclusively prove that the convictions met he statutory definitions; that the charging indictment did not state that the enhancement would be applied to defendant which failure to provide full disclosure of the offense to which he would be sentenced resulted in the indictment being defective; that he pled only to the offense he was charged with and did not admit to the prior convictions that were utilized to place the enhancement upon him; and the prior convictions used to enhance the sentence must be charged in the indictment and proven to the jury beyond a reasonable doubt. Defendant states that he voiced objections of the erroneous information contained in the report, but the illegal enhancement was allowed due to the incompetence and ineffective assistance of counsel who ignored his instructions to appeal.
Defendant argues that Jenkins failed to realize that the sentencing enhancements were required to be proven beyond a reasonable doubt and that application of the career offender provision has a disparate impact on minority defendants.
The government filed a response on May 1st that his §2255 motion executed on March 12th was more than a year after his sentence became final on March 9th so the Court lacks jurisdiction
It next addresses the claim that his counsel failed to adequately research his prior criminal history and that the prior convictions are not legally adequate to prove crimes of violence. The government states that both defendant and his counsel raised factual objections to the propr criminal convictions before sentencing with defendant filing written objections that were addressed by the probation officer and were again raised at sentencing. It asserts that the Court considered and rejected defendant's objections to PSR paragraph 23 finding that he was convicted and sentenced as an adult for robbery and burglary which neither defendant nor his attorney denied that he had been so convicted although defendant objected to whether he was old enough to have been convicted as an adult and whether he was factually innocent of the charges. The government notes that the documents from those convictions were provided to defendant in open court. It continues that defendant did not deny that he was convicted of the murder charge in paragraph 24 of the PSR and, in fact, implicitly admitted that conviction and the third qualifying predicate felony was in paragraph 26 of the PSR for a drug tracking -- delivery of controlled substance. The government states that both defendant and his attorney objected to the prior convictions, but proof was provided to the Court so the fact of his prior convictions was proved by competent evidence. It also points out that Jenkins described what research he had done in obtaining all but the St. Francis County convictions that he reviewed from documents provided to him by the probation office and had represented defendant on prior occasions.
Turning to the argument that his punishment must be increased by a jury rather than the Court, the government states that argument has been consistently rejected by the Eighth Circuit. On the issue of the failure to file an appeal, the government respond that defendant's counsel reports that defendant did not ask him to file an appeal and, even if there were some error, defendant has not articulated what the basis of an appeal would be of that an appeal would be successful and so has failed to demonstrate any prejudice.
On May 26th, defendant filed a reply that he submitted his motion on February 28th under the prison mail box rule so that the motion is timely filed although he did follow with a supporting brief which addressed all of the issues that were raised in the timely filed motion. He contends that the government has not rebutted that he requested his attorney to file a direct appeal, that Jenkins did not provide a sworn affidavit rebutting that claim, and to failure to appeal deprived him of an appeal of his illegal sentence and he is not required to establish that he would necessarily succeed on the claim.
The Court finds that the §2255 motion was timely filed on March 3rd which was within one year of the entry of the judgment and commitment on the docket on March 9, 2005.*fn2 Defendant clearly identified his three claims in the motion and the supporting March 17th brief did not raise any new ...