Stamper v. United States ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0874n.06
Filed: December 20, 2007
No. 06-6130
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LEON STAMPER,
Petitioner-Appellant,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA, WESTERN DISTRICT OF KENTUCKY
Respondent-Appellee.
/
BEFORE: CLAY, SUTTON and McKEAGUE, Circuit Judges.
CLAY, Circuit Judge. Petitioner Leon Stamper brings this habeas action pursuant to 28
U.S.C. § 2255, arguing that he received ineffective assistance of counsel when his attorney failed
to appeal his sentence upon request, or alternatively, that his counsel was ineffective because he
failed to consult with him regarding the possibility of appeal. The United States contests this
petition, arguing that Petitioner did not receive ineffective assistance under the standard established
by Roe v. Flores-Ortega, 528 U.S. 470 (2000). For the reasons which follow, we hold that
Petitioner’s case falls within the narrow set of circumstances where a criminal defense attorney is
not constitutionally required to consult with his client about the possibility of appeal. Accordingly,
the decision of the district court denying habeas relief to Petitioner is AFFIRMED.
No. 06-6130
STATEMENT OF FACTS
On July 22, 2000, Petitioner Leon Stamper arrived at a used car dealership in Louisville,
Kentucky. There he convinced Jeff Cochran, a 65 year-old salesman, to allow him to test-drive a
1996 Pontiac Trans Am. United States v. Stamper, 91 Fed. Appx. 445, 448 (6th Cir. 2004).
Accompanied by Cochran, Petitioner eventually drove the vehicle to a convenience store, pointed
a gun at Cochran and instructed him to sit still and remain silent. Id. Petitioner left the convenience
store with Cochran, drove to a country road, and dragged Cochran out of the vehicle and into a
nearby forest. Despite Cochran’s protests that he suffered from a heart condition, Petitioner bound
and gagged Cochran and left him in the forest. Id. Cochran escaped from his bonds, sought help
at a nearby house, and was briefly hospitalized that evening due to high blood pressure. Id.
At trial on six counts related to this incident, Petitioner was represented by a court-
appointed attorney. After his conviction on five of these six counts, including carjacking, use of a
firearm in commission of violent crime and possession of a firearm by a convicted felon, Petitioner
was sentenced to 360 months of imprisonment, Stamper, 91 Fed. Appx. at 448, and Petitioner’s
appointed counsel was excused by the district judge. Petitioner appealed his conviction and sentence
to this Court, and the clerk appointed the same attorney who represented Petitioner at trial to serve
as his appellate counsel.
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On appeal, Petitioner raised a bevy of claims, all but one of which were rejected.1
Nevertheless, this Court reversed Petitioner’s sentence on the ground that the district court erred by
finding that Petitioner inflicted “serious bodily injury” on Cochran, a finding which requires a four-
point enhancement under the Sentencing Guidelines, absent sufficient evidence in the record to
sustain this finding. Id. at 465. In so holding, however, this Court upheld the district court’s
prerequisite finding that Cochran sustained mere “bodily injury,” which triggers a two-point
enhancement in the absence of serious injury. Id. at 464.
On remand, Petitioner was represented by the same court-appointed attorney who represented
him at trial and on appeal. The district court conducted an evidentiary hearing for the limited
purpose of determining “the extent of bodily injury to the victim,” (J.A. 152), and the court-
appointed attorney successfully convinced the district judge that Cochran only suffered “bodily
injury,” not “serious bodily injury” as the district court found at trial. Accordingly, Petitioner was
resentenced to 319 months in prison, a 41 month reduction from his original sentence. Before
adjourning, the district court advised Petitioner that he “may appeal from this sentence by filing a
Notice of Appeal within ten days,” as is required by Fed. R. Crim. P. 32(j)(1)(B). (J.A. 176)
1
On appeal, Petitioner claimed: 1) that the United States denied him access to material
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); Stamper, 91 Fed. Appx. at 451, 2)
that evidence seized in a warrantless search of his motel room should be suppressed; Id. at 453, 3)
that incriminating photographs taken on seized film should be suppressed; Id. at 455, 4) that
testimony by his domestic partner should not have been allowed at trial; Id. at 456; 5) that his
identification in a photographic lineup violated Due Process; Id. at 459; and, 6) that the district court
improperly applied a sentencing enhancement for inflicting “serious bodily injury” in the
commission of the crime; Id. at 463.
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Also before adjourning, Petitioner’s counsel informed the district judge that he was court-
appointed counsel, and asked if he was relieved of his obligations to his client at that point. The
court responded that “I’d ask you to stay and if [Petitioner] seeks to file an appeal—if he wants to
file an appeal—he may do so, but I think you should consider that first.” (J.A. 176) Petitioner’s
counsel did not file an appeal, and he failed to consult with his client regarding whether or not the
client wished to appeal. Petitioner now claims that this amounts to ineffective assistance of counsel,
and filed this habeas petition.2
DISCUSSION
Standard of Review
In reviewing a district court’s denial of a § 2255 habeas petition, this Court reviews findings
of fact for clear error and conclusions of law de novo. Dunlap v. United States, 250 F.3d 1001, 1004
(6th Cir. 2001).
Analysis
Normally, an ineffective assistance of counsel claim has two components. The defendant
must both “show that counsel's performance was deficient,” and demonstrate that “the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In Roe
2
In the final sentences of his brief, Petitioner also claims that “all of this could have been
short cut had the District Court, pursuant to former Criminal Rule 32(c)(5), directly advised the
Appellant of his right to appeal . . . .” (Petitioner’s Br. at 12) This argument is waived, however,
because it is raised for the first time before this Court. Union Planters Nat’l Bank of Memphis v.
Commercial Credit Bus. Loans, 651 F.2d 1174, 1187 (“It is axiomatic that an issue not presented
to the trial court cannot be raised for the first time on appeal.”). Furthermore, it is contradicted by
the record, as the district judge did inform Petitioner that he “may appeal from this sentence by filing
a Notice of Appeal within ten days from today’s date,” immediately after resentencing. (J.A. 176)
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No. 06-6130
v. Flores-Ortega, 528 U.S. 470 (2000), however, the Supreme Court clarified this rule in the context
of a claim that counsel failed to either file an appeal or consult with his client regarding the
possibility of appeal. Under Flores-Ortega, when defense counsel “disregards specific instructions
from the defendant to file a notice of appeal,” Id. at 477, this disregard constitutes a “per se violation
of the Sixth Amendment.” Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998). This is true
“regardless of whether the appeal would have been successful or not.” Id.
If, on the other hand, defendant has not instructed counsel “one way or the other,” then
“counsel has a constitutionally imposed duty to consult with the defendant about an appeal when
there is reason to think either (1) that a rational defendant would want to appeal (for example,
because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in appealing.” Flores-Ortega, 528 U.S. at 477, 480.
Additionally, to prove that their attorney’s failure to consult about an appeal prejudiced the defense,
the defendant must show that “there is a reasonable probability that, but for counsel’s deficient
failure to consult with him about an appeal, he would have timely appealed.” Id. at 484.
While Flores-Ortega stated that an attorney who fails to consult with his client will be held
ineffective in “the vast majority of cases,” 528 U.S. at 481, this case presents the rare set of
circumstances in which counsel’s failure to consult with his client does not amount to ineffective
assistance.
A. Petitioner’s Communicated Intentions
Under Flores-Ortega, Petitioner must first demonstrate that he actually requested that his
attorney file an appeal, that he reasonably demonstrated his interest in appealing, or that a reasonable
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No. 06-6130
defendant would want to appeal in his circumstances. Id. at 480. The district court, however,
focused its analysis on the first of these tests.
In an evidentiary hearing conducted by the district judge, Petitioner testified that immediately
before his resentencing hearing, he asked his defense counsel what the likely result of the hearing
would be. According to Petitioner, counsel told him that he was likely to receive a two-point
sentencing enhancement, rather than the four-point enhancement received at trial. Petitioner further
testified that he told counsel that he “wasn’t satisfied with the two points, that I felt that four should
have came [sic] off,” adding that “I told him I want him to appeal it, and he said that he would take
care of it.” (J.A. 191) Despite Petitioner’s testimony that he spoke to his attorney about appealing
prior to the resentencing hearing, Petitioner also testified that he spoke with his attorney “[m]aybe
five, six” times subsequent to this hearing, but that he was “not sure” whether they discussed
appealing the district court’s decision at resentencing. (J.A. 193)
At the same evidentiary hearing, Petitioner’s defense counsel testified unequivocally that he
did not have any conversations with Petitioner regarding his right to appeal or his desire to appeal
subsequent to resentencing. Indeed, counsel testified that he had no conversations whatsoever with
Petitioner regarding his right to appeal or his desire to appeal, even during the several conversations
they had subsequent to the hearing.
Faced with conflicting testimony as to whether or not Petitioner instructed his attorney to
appeal, the district court found the attorney’s testimony more credible. In so finding, the district
court noted that Petitioner “conceded that he did not request an appeal [immediately] following
imposition of sentence,” and that Petitioner was “not sure” whether he discussed the possibility of
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No. 06-6130
appeal at any point whatsoever. (J.A. 116-17) According to the district court, “it is difficult to
reconcile testimony of a firm desire and a clear request to appeal with later testimony that
[Petitioner] contacted his lawyer on five or six occasions . . . but that he just can’t remember whether
he inquired about why the lawyer had refused his clear request to appeal.” (J.A. 117)
The district court also noted Petitioner’s testimony that his defense counsel had “done pretty
good” prior to the alleged request for an appeal, and added that its impression of counsel “during the
course of the trial confirms that he does not give the impression of a lawyer who would ignore his
client’s wishes.” (Id.) Based on these findings, the court held that Petitioner “failed to show it more
likely than not that he asked [counsel] to appeal from the resentencing.” (J.A. 118)
These findings are not clearly erroneous. Petitioner’s sole evidence that he requested an
appeal was his own testimony to that effect. This testimony, however, is inconsistent with
Petitioner’s own actions subsequent to this alleged request, and it contradicts the trial judge’s own
observations about counsel’s responsiveness to his client. Accordingly, we will not disturb the
district court’s finding that Petitioner’s testimony was not credible, and instead will affirm the
district court’s finding that Petitioner did not ask his attorney to appeal his case.
Furthermore, the district court’s finding that Petitioner did not instruct his attorney to appeal
is also dispositive of the question of whether Petitioner “reasonably demonstrated to counsel that he
was interested in appealing.” Flores-Ortega, 528 U.S. at 480. Petitioner admitted that he was “not
sure” whether the topic of an appeal even came up in post-resentencing discussions with his attorney.
(J.A. 193.) Accordingly, the only indication that he demonstrated any interest in appeal were his
alleged pre-resentencing statements to counsel—statements which the district court discounted.
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No. 06-6130
Because we accept the district court’s credibility determinations on that point, we hold that Petitioner
cannot claim ineffectiveness on the grounds that he reasonably demonstrated his interest in appealing
his sentence.
We now turn to whether Petitioner reasonably would have wanted to appeal his resentencing
hearing.
B. Reasonable Grounds for Appeal
The district court did not consider whether “a rational defendant would want to appeal” given
Petitioner’s circumstances after his resentencing. (See J.A. 166 (“We are not concerned with the
merits or wisdom of an appeal.”)) Nevertheless, under Flores-Ortega, Petitioner may show
ineffective assistance of counsel if he can demonstrate that a rational defendant would have wanted
to appeal at this stage in the process. 528 U.S. at 480. We believe, however, that Petitioner cannot
make such a showing.
In United States v. Adesida, 129 F.3d 846 (6th Cir. 1997), we held that “[t]he law-of-the-case
doctrine bars challenges to a decision made at a previous stage of the litigation which could have
been challenged in a prior appeal, but were not.” Id. at 850. In other words, once an appeal has been
taken and a case has been returned to the trial court on remand, a party is precluded from raising any
issues on second appeal which could have been raised on the first one (barring some new
development on remand which should be addressed in a subsequent appeal). This law-of-the-case
doctrine bound Petitioner in any appeal taken subsequent to his resentencing.
In this case, Petitioner raised numerous issues in his first appeal, all but one of which were
rejected by this Court. Stamper, 91 Fed.Appx. at 465. As the sole grounds for remanding
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Petitioner’s case to the trial court for resentencing, we held that the trial court clearly erred in finding
that Petitioner inflicted “serious bodily injury” on his victim, thus triggering a four-point
enhancement. Id. at 464. It is also important to note, however, what this Court did not hold on
appeal. Although we concluded that there was “no basis in the record” for a finding that Petitioner
inflicted serious bodily injury, Id. at 465, we permitted the district court to gather additional evidence
which would support such a finding on remand. See id. Similarly, we expressly held that “[t]he
district court did not clearly err in finding that Cochran had sustained the prerequisite ‘bodily injury’
so as to trigger” a two-point sentencing enhancement. Id. at 464. In other words, we affirmed the
finding of “bodily injury,” but remanded the issue of “serious bodily injury.” Accordingly, the best
possible result Petitioner could have achieved on remand was a finding that he only inflicted “bodily
injury” on his victim, thus triggering a mere two-point enhancement.
On remand, the district court limited its inquiry to the narrow question of the extent of
Cochran’s injuries. In litigating this narrow issue, Petitioner’s counsel successfully convinced the
court to find that Petitioner only inflicted “bodily injury” on Cochran, thus obtaining the best
possible result for his client. Furthermore, as this issue on remand was also the only issue in the case
which could not also have been appealed immediately after Petitioner’s trial, the law-of-the-case
doctrine prevented Petitioner from appealing any issue other than the question of whether or not he
inflicted serious bodily injury on his victim. See Adesida, 129 F.3d at 850. Because the only result
Petitioner could have obtained on appeal would have been equal to or less favorable than the one he
already obtained at resentencing, a reasonable defendant would not have wanted to appeal under
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No. 06-6130
these circumstances. Accordingly, Petitioner’s claim that he received ineffective assistance of
counsel must be denied.
CONCLUSION
In the “vast majority of cases,” criminal defense counsel has a duty to consult with their client
about a possible appeal. Flores-Ortega, 528 U.S. at 481. Nevertheless, given the district court’s
finding that Petitioner did not instruct his attorney to appeal, combined with the very favorable result
Petitioner obtained at resentencing, we hold that this case presents the rare set of circumstances
where a criminal attorney who fails to consult with his client about a possible appeal did not provide
ineffective assistance. Accordingly, the decision of the district court denying habeas relief to
Petitioner is AFFIRMED.
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