United States v. Michael Speed , 636 F. App'x 172 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7298
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL SPEED,
Defendant - Appellant.
No. 15-7375
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL SPEED,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:10-cr-00700-JFM-1; 1:14-cv-00583-JFM)
Submitted: November 19, 2015 Decided: January 12, 2016
Before NIEMEYER, KING, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Michael Speed, Appellant Pro Se. Benjamin M. Block, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In these consolidated appeals, Michael Speed challenges the
district court’s orders denying relief in his federal
postconviction proceeding. In Appeal No. 14-7298, Speed
challenges the district court’s order denying his 28 U.S.C.
§ 2255 (2012) motion. We initially remanded the case to the
district court with instructions that it rule on what should
have been construed as a Fed. R. Civ. P. 59(e) motion and
dispose of Speed’s two remaining ineffective assistance of
counsel claims. 1 On remand, the district court denied Speed’s
Rule 59(e) motion, and the case has been returned to this court.
Speed’s appeal of the district court’s order denying his Rule
59(e) motion was docketed as Appeal No. 15-7375.
On remand, the district court correctly docketed Speed’s
Rule 59(e) motion and directed the Government to respond to
1
In his § 2255 motion, Speed asserted a claim that counsel
provided ineffective assistance in failing to advise him of the
possibility of pleading guilty without a plea agreement to the
drug charge only, and failing to advise him of a potentially
meritorious defense to the firearm charge. In his informal
briefs in these appeals, Speed does not assert error in the
district court’s rejection of these claims, and they are
therefore not preserved for review in this court. 4th Cir. R.
34(b) (“The Court will limit its review to the issues raised in
the informal brief.”). In his amended § 2255 motion, Speed
claimed that counsel was ineffective in failing to timely file a
notice of appeal of his criminal judgment despite being asked to
do so (“appeal claim”), and in failing to investigate and
develop a mental competency argument as a mitigating factor for
sentencing. Those claims are preserved for appellate review.
3
Speed’s two remaining habeas claims. In its response, the
Government opposed both of Speed’s remaining claims on their
merits, but conceded that the appeal claim necessitated an
evidentiary hearing. Thus, the Government requested that an
evidentiary hearing be scheduled on this claim and that Speed be
appointed counsel for the hearing.
Rather than schedule an evidentiary hearing on the appeal
claim, however, the district court merely denied Speed’s
remaining § 2255 claims. With regard to Speed’s appeal claim,
the district court stated:
I will assume (if for no other reason than that the
plea letter contained a paragraph waiving defendant’s
right to appeal) that defendant was not advised by his
counsel of the right to appeal. This assumption may
or may not be correct. However, making the assumption
will save the government the cost of returning
defendant to Baltimore and will save significant time
and expense of the parties.
An appeal may not be taken to this court from the final
order in a § 2255 proceeding unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B) (2012). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
4
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the motion states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
Under this standard, the movant must show that “reasonable
jurists could debate whether (or, for that matter, agree that)
the [motion] should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement
to proceed further.” Miller-El, 537 U.S. at 336 (internal
quotation marks omitted). Thus, “[t]he [certificate of
appealability] determination under § 2253(c) requires an
overview of the claims in the habeas petition and a general
assessment of their merits.” Id. In this regard, this court
must “look to the District Court’s application of [the
Antiterrorism and Effective Death Penalty Act of 1996] to [the
movant’s] constitutional claims and ask whether that resolution
was debatable amongst jurists of reason.” Id. “This threshold
inquiry does not require full consideration of the factual or
legal bases adduced in support of the claims. In fact, the
statute forbids it.” Id.
5
We conclude that reasonable jurists could debate whether
Speed’s appeal claim should have been resolved in a different
manner and that the issue presented is adequate to deserve
encouragement to proceed further. First, it appears that the
district court misconstrued Speed’s claim. Although Speed
asserted that counsel failed to timely appeal the criminal
judgment against him despite being asked to do so, the district
court characterized the claim as complaining of counsel’s
failure to advise Speed of his right to appeal. These claims
are not the same.
And although the district court suggests that counsel
committed no error because Speed’s plea agreement contained an
appellate waiver, this is incorrect. The Sixth Amendment
obligates counsel to file a notice of appeal when a defendant
requests him to do so. Strong v. Johnson, 495 F.3d 134, 138
(4th Cir. 2007). Even a waiver of appellate rights in the
defendant’s plea agreement does not absolve counsel of his duty
to file a notice of appeal. United States v. Poindexter, 492
F.3d 263, 268-71 (4th Cir. 2007). Thus, counsel’s failure to
file a notice of appeal following a defendant’s unequivocal and
timely request constitutes objectively deficient performance,
and prejudices the defendant because it deprives him of an
appellate proceeding. Id. at 268-69.
6
Moreover, we find that the district court’s language makes
it unclear whether the district court meant to grant or deny
Speed’s appeal claim. First, although the district court’s most
recent order denies Speed’s § 2255 claims, the district court
appeared to assume counsel’s ineffectiveness so as to save the
parties the cost and time of an evidentiary hearing. If the
district court meant to grant Speed’s appeal claim, it failed to
grant Speed appropriate relief - namely, reentering the criminal
judgment against Speed to afford him an opportunity to file a
timely criminal appeal. United States v. Peak, 992 F.2d 39, 42
(4th Cir. 1993). A review of the district court’s docket
confirms that the criminal judgment against Speed has not been
reentered so as to commence Speed’s criminal appeal period anew.
On the other hand, if the district court truly meant to
deny Speed’s appeal claim, it appears (based on the record as it
currently exists) that the district court should have first
conducted an evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970) (“Unless it is clear from the
pleadings and the files and records that the prisoner is
entitled to no relief, [§ 2255] makes a hearing mandatory.”);
cf. Poindexter, 492 F.3d at 267 (“Because the district court did
not hold an evidentiary hearing to resolve the question of
whether [movant] unequivocally instructed his attorney to file a
timely notice of appeal, we must assume that [movant] did so
7
instruct for purposes of resolving his appeal.”). No
evidentiary hearing was conducted by the district court.
In sum, we conclude that reasonable jurists would disagree
whether the district court correctly denied relief on Speed’s
appeal claim. Moreover, and regardless of the district court’s
intended disposition on Speed’s ineffective assistance of
counsel claims, additional action by the district court is
necessary before this court may consider Speed’s appeal.
Accordingly, we grant a certificate of appealability on Speed’s
appeal claim. We vacate the district court’s August 12, 2015
order and remand to the district court with instructions that it
clarify its ruling pertaining to the appeal claim and conduct
any further proceedings it deems appropriate. 2 In light of the
complicated procedural history of this case, the district court
should issue an opinion explaining its resolution of both of
Speed’s remaining claims: that counsel was ineffective in
failing to timely file a notice of appeal and in failing to
investigate and develop a mental health argument for mitigation
at sentencing. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
2 We, of course, express no opinion as to the merits of this
claim.
8
before this court and argument would not aid the decisional
process.
VACATED AND REMANDED
9