United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey United States District Judge.
the Court are two Report and Recommendations filed by the
Honorable Barry A. Bryant, United States Magistrate Judge for
the Western District of Arkansas. ECF Nos. 69, 83. The Court
finds these matters ripe for consideration.
February 27, 2015, Movant filed a Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence. ECF
No. 55. On July 31, 2015, Judge Bryant issued a Report and
Recommendation recommending that Movant's Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
(ECF No. 55) be denied and dismissed with prejudice. ECF No.
69, p. 11. Judge Bryant also recommended a finding that
“an appeal from dismissal would not be taken in good
faith.” ECF No. 69, p. 11. Movant subsequently filed
timely objections. ECF No. 72.
26, 2016, Movant filed a Supplemental Motion for Relief under
28 U.S.C. § 2255. ECF No. 76. On October 13, 2017, Judge
Bryant entered a Report and Recommendation recommending that
Movant's Supplemental Motion for Relief under 28 U.S.C.
§ 2255 (ECF No. 76) be denied and dismissed with
prejudice and that no certificate of appealability be issued.
ECF No. 83, p. 3. The parties have not filed objections to
this Report and Recommendation and the time to object has
Court will address each of Judge Bryant's Report and
Recommendations in turn.
Report and Recommendation of July 31, 2015
filed timely objections to Judge Bryant's Report and
Recommendation of July 31, 2015. However, of those
objections, only one is specific so as to trigger de
novo review. Movant objects to Judge Bryant's
conclusion that an evidentiary hearing is not warranted in
regard to one of Movant's ineffective assistance of
initial Motion, Movant claims that he directed his trial
counsel to file a notice of appeal, but that he did not do
so. Judge Bryant examined this contention, but ultimately
found that Movant had “not supplied sufficient evidence
to demonstrate he directed his attorney to file an
appeal.” ECF No. 69, p. 8. In support of this
conclusion, Judge Bryant noted that the record contained an
affidavit of Movant's attorney stating that Movant had
never directed him to file a notice of appeal. ECF No. 69, p.
8. Judge Bryant further noted that Movant had waived certain
appellate rights and found that Movant's “conduct
after sentencing does not support his claim that he had any
interest in appealing his case.” ECF No. 69, p. 8. In
his objections, Movant states that:
. . . it is an abuse of discretion under Franco v. United
States, (8th Cir. 2014) for federal courts to deny
evidentiary hearing solely on the basis of an attorney(s)
affidavit that dispute(s) a client position that counsel was
requested to file a notice of appeal[.]
ECF No. 72.
well established that “an attorney's failure to
file a notice of appeal after being instructed to do so by
his client constitutes ineffective assistance entitling
petitioner to section 2255 relief, no inquiry into prejudice
or likely success on appeal being necessary.”
Barger v. United States, 204 F.3d 1180, 1182 (8th
Cir. 2000) (citing Holloway v. United States, 960
F.2d 1348, 1356-57 (8th Cir. 1992)). In general, “[a]
petitioner is entitled to an evidentiary hearing on a section
2255 motion unless the motion and the files and the records
of the case conclusively show that [he] is entitled to no
relief.” Franco v. United States, 762 F.3d
761, 763 (8th Cir. 2014) (quoting Anjulo-Lopez v. United
States, 541 F.3d 814, 817 (8th Cir. 2008)) (internal
quotation marks omitted). “No hearing is required,
however, where the claim is inadequate on its face or if the
record affirmatively refutes the factual assertions upon
which it is based.” Id.
de novo review, the Court finds that the record does
not affirmatively refute Movant's factual allegation that
he asked his trial counsel to file a notice of appeal.
Although Movant waived certain appellate rights, he may have
asked his attorney to file an appeal. The record contains
conflicting evidence-one statement by Movant stating that he
directed his counsel to file an appeal and an opposing
affidavit of Movant's trial counsel stating that Movant
did not ask him to file an appeal. Accordingly, the Court
must make a factual determination regarding whether Movant
directed his attorney to file an appeal. Therefore, an
evidentiary hearing on this single issue-whether Movant asked
his attorney to file ...