United States v. Bell

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________
)
UNITED STATES OF AMERICA, )
)
v. )
) Criminal Action No. 05-100-7 (RWR)
JASMINE BELL, )
)
Defendant. )
__________________________)
MEMORANDUM OPINION
Petitioner Jasmine Bell moves under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence arguing that his
attorney provided ineffective assistance by not complying with
his instruction to file a notice of appeal. The government
opposes Bell’s motion arguing that Bell did not ask his attorney
to file a notice of appeal. Because Bell has not proven by a
preponderance of the evidence that he asked his attorney to file
a notice of appeal, Bell’s motion will be denied.
BACKGROUND
In November 2001, Jasmine Bell was arrested for various
drug-related offenses. See Mem. of Law and Args. in Supp. of
Mot. to Vacate, Set Aside, or Correct an Illegal Sentence
Pursuant to Title 28 Sect. 2255 (“Pet’r Mem.”) at 4. In January
2002, Bell was serving misdemeanor sentences imposed by the D.C.
Superior Court that expired in September 2002. Id. In May
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2002, Bell was sentenced to three years imprisonment for a drug
offense and, in August 2002, Bell was sentenced to an additional
two years of imprisonment by the D.C. Superior Court for another
drug offense. See id.; see also United States’ Mot. to Dismiss
Def.’s Nunc Pro Tunc Mot. (“Gov’t Mot.”) at 1-2; Pet’r Mem., Ex.
2, Decl. of Patrick Liotti (“Liotti Decl.”) ¶¶ 4-5. Thus, when
Bell’s original misdemeanor sentence expired, he began serving
an aggregated total of five years. See Pet’r Mem. at 4; see
also Liotti Decl. ¶ 11.
In December 2002, Bell was received at the Federal
Correctional Institute in Beckley, West Virginia to serve his
five-year sentence. 1 Pet’r Mem. at 4. He was indicted in a
superseding indictment for various drug charges by a federal
grand jury in 2005. Gov’t Mot. at 2. While Bell was serving
his five-year sentence, he was transported to the United States
District Court for the District of Columbia by the U.S. Marshals
under a writ of habeas corpus ad prosequendum to face his
federal charges. Pet’r Mem. at 4; Gov’t Mot. at 2.
In August 2006, Bell pled guilty under Federal Rule of
Criminal Procedure 11(c)(1)(C) 2 to conspiracy to engage in
1
D.C. Code offenders are housed in federal prisons or
contract facilities. See Liotti Decl. ¶ 6.
2
A Rule 11(c)(1)(C) plea agreement reflects the parties’
agreement on a particular term of imprisonment or a range of
imprisonment. Fed. R. Crim. P. 11(c)(1)(C).
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racketeering in violation of 18 U.S.C. § 1962(d). Gov’t Mot. at
3. The plea agreement exposed Bell to a range of 135 to 168
months imprisonment. Id. Before sentencing, Bell’s attorney,
Joseph Beshouri, moved under United States Sentencing Guidelines
(“USSG”) § 5G1.3 for a reduction, below the range agreed to in
the plea agreement, in light of Bell’s D.C. Superior Court
sentences. 3 United States’ Resp. to Def.’s Nunc Pro Tunc Mot.
(“Gov’t Resp.”), Ex. D, Def.’s Mem. in Aid of Sentencing at 7-
10. This court denied the reduction motion and on December 1,
2006, sentenced Bell to 146 months, within the agreed-upon
range. Id., Ex. E, Tr. of Bell’s Sentencing (“Sent’g Tr.”) at
61-62; id., Ex. F at 2.
In March of 2007, Bell wrote the court a letter seeking
credit on his current sentence for time he spent detained while
awaiting trial. Gov’t Mot. at 3-4; Pet’r Mem., Ex. 3, Mar. 2007
Letter. In October of 2007, Bell wrote a second letter in which
he requested appointment of a new attorney because his attorney
would not file an appeal on his behalf. See Gov’t Resp., Ex. I,
Oct. 2007 Letter. Bell, who was at that time housed at the
Federal Correctional Institute in Bennettsville, South Carolina,
then filed a petition for a writ of habeas corpus under 28
3
Perhaps because of challenges like these, Rule 11(c)(1)(C)
plea agreements in this district now tend to include language in
which the defendant will waive any right to move for a USSG
reduction. See infra n.7.
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U.S.C. § 2241 in the United States District Court for the
District of South Carolina. See Pet’r Mem. at 4. Bell’s
petition was denied. Id.
Bell moves under 28 U.S.C. § 2255 to vacate, set aside, or
correct his sentence arguing that he received ineffective
assistance of counsel because his trial counsel, Beshouri,
failed to appeal despite Bell’s request to Beshouri to file an
appeal. The government opposes, arguing that Bell never asked
Beshouri to file a notice of appeal. Because of the factual
disputes on the record, an evidentiary hearing on Bell’s § 2255
claim was held on July 18, 2014. Because Bell has failed to
prove by a preponderance of the evidence that he asked Beshouri
to file a notice of appeal, Bell’s motion will be denied.
DISCUSSION
In a § 2255 motion, a petitioner can move the sentencing
court to “vacate, set aside or correct the sentence” if “the
sentence was imposed in violation of the Constitution or laws of
the United States, . . . or [if] the sentence was in excess of
the maximum authorized by law[.]” 28 U.S.C. § 2255(a). The
burden lies on the petitioner to prove the violation by a
preponderance of the evidence. United States v. Pollard, 602 F.
Supp. 2d 165, 168 (D.D.C. 2009).
The Sixth Amendment provides criminal defendants the right
to be represented by counsel. U.S. Const. amend. VI. Implicit
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in this guarantee is that counsel will provide effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771
n.14 (1970) (“[T]he right to counsel is the right to the
effective assistance of counsel.”). In order to prove
ineffective assistance of counsel, Bell must show (1) that
counsel’s representation fell below an objective standard of
reasonableness, and (2) that there is a reasonable probability
that but for counsel’s errors, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S.
668, 684-88, 694 (1984). “The Strickland test extends to claims
of ineffective assistance based on a failure to file an appeal.
. . . A lawyer who disregards specific instructions from the
petitioner to file a notice of appeal acts in a professionally
unreasonable manner.” United States v. Felder, 563 F. Supp. 2d
160, 167 (D.D.C. 2008) (citing United States v. Taylor, 339 F.3d
973, 977 (D.C. Cir. 2003)).
Counsel’s failure to file an appeal requested by the
client “cannot be considered a strategic decision.”
. . . A petitioner is entitled to resentencing and to
an appeal without having to show that it would likely
have had merit when his counsel does not file a
requested appeal. . . . If a petitioner’s attorney
does not comply with a request to file an appeal, the
sentence will be vacated and the petitioner will be
resentenced to allow him to appeal.
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Moore v. United States, 881 F. Supp. 2d 125, 136 (D.D.C. 2012)
(quoting Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)). 4
In addition, Bell’s appeal had to have been taken within 10
days after his sentencing judgment was entered. Fed. R. App. P.
4(b)(1)(A)(i), 4(b)(6). 5 Alternatively, “[u]pon a finding of
excusable neglect or good cause, the district court may . . .
extend the time to file a notice of appeal for a period not to
exceed 30 days from the expiration of the time otherwise
prescribed . . . .” Id. 4(b)(4); see also Evidentiary Hr’g Tr.,
July 18, 2014, (“Hr’g Tr.”) at 70:23-71:8.
Here, Bell contends that he asked Beshouri to file an
appeal, in person, immediately following his sentencing hearing
and again, through letters, in the months following his
sentencing hearing. Bell also contends that Beshouri failed to
file any such notice of appeal and thereby rendered ineffective
assistance. Since it is undisputed that Beshouri did not file a
4
If the petitioner’s attorney fails to consult with his
client regarding an appeal, “the court must in turn ask a
second, and subsidiary question: whether counsel’s failure to
consult with the defendant itself constitutes deficient
performance.” Flores-Ortega, 528 U.S. at 478. However, Bell
has not alleged that his attorney failed to consult with him
regarding an appeal.
5
At the time Bell was sentenced, the appellate rules
provided 10 days to appeal a sentence. In 2009, the time period
changed to 14 days. Fed. R. App. P. 4, Advisory Committee Notes
(2009 Amendments) (“Subdivisions (b)(1)(A) and (b)(3)(A). The
times set in the former rule at 10 days have been revised to 14
days.”).
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notice of appeal, the central factual issues are whether Bell
asked Beshouri to file a notice of appeal and if so, the date on
which Bell made the request.
In this case, the judgment was entered on December 8, 2006,
Gov’t Resp., Ex. F, Judgment at 1; Hr’g Tr. at 91:20-92:13,
giving Bell until December 18, 2006 to file a notice of appeal.
Bell presented unrebutted testimony that he asked Beshouri to
file an appeal while they were in the holding cell, immediately
following the sentencing hearing on December 1, 2006. 6 Hr’g Tr.
at 15:12-16. Beshouri, on the other hand, testified that he had
no recollection of the conversation, id. at 71:21-22, and did
not remember talking to Bell immediately following Bell’s
sentencing hearing. Id. at 71:25-72:4. 7
6
Bell testified that he was “just trying to remember
everything that happened to the best of [his] ability.” Hr’g
Tr. at 53:4-6. As it happens, there were minor inconsistencies.
Bell first testified that his conversation with Beshouri after
his sentencing hearing did not include a lot of details about
why he wanted an appeal, id. at 15:15-19, and ended when
Beshouri said no. Id. at 15:21-16:8; 16:14-19. On cross-
examination, Bell’s testimony was slightly different. He
testified that he told Beshouri the reasons why he wanted an
appeal and that he urged Beshouri to file an appeal even after
Beshouri told him that there was no need to file an appeal. Id.
at 50:24-52:3, 52:18-25. However, these events took place eight
years ago, and this, on its own, does not irreparably impair
Bell’s credibility.
7
Beshouri’s inability to recall a conversation with Bell
following Bell’s sentencing hearing is not enough, on its own,
for Bell to succeed in a § 2255 motion based on ineffective
assistance of counsel because the burden is not on Beshouri to
prove that Bell never asked for an appeal. Instead, the burden
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Although Beshouri does not recall such a conversation,
evidence demonstrates that Beshouri vigorously represented Bell
moments before any conversation he may have had in the holding
cell after Bell’s sentencing hearing. Hr’g Tr. at 12:20-23,
13:1-16, 67:8-18, 68:15-69:23. Beshouri’s efforts to seek a
USSG § 5G1.3 reduction of Bell’s sentence was so vigorous that,
at one point in the hearing, the prosecutor threw down his
papers and threatened to revoke the plea agreement. 8 Id. at
23:19-23, 32:5-12, 57:2-58:16, 69:16-23, 90:18-91:3; see also
Sent’g Tr. at 48 (at the sentencing, the prosecutor stated “I
apologize to the Court and counsel if I acted more animatedly
than I needed to. I am upset about it, clearly, and I do
clearly think that . . . this is trying to breach the
is on Bell to prove that it is more likely than not that Bell
asked for an appeal. Pollard, 602 F. Supp. 2d at 168.
8
At Bell’s sentencing hearing, the prosecutor thought the
plea agreement was clear by its terms in that it would not allow
Bell to move for a downward departure. Hr’g Tr. at 57:15-20;
Sent’g Tr. at 48. However, at the sentencing, Beshouri argued
that the plea agreement was ambiguous, id. at 46, and that a
USSG § 5G1.3 departure was appropriate, even in light of the
fact that the parties engaged in a Rule 11(c)(1)(C) plea. Hr’g
Tr. at 68:7-69:23. Bell’s Rule 11(c)(1)(C) plea agreement did
not contain unequivocal language that the defendant could not
seek a downward departure, as such plea agreements in this
district often state today. See, e.g., United States v.
Hubbard, Criminal Action No. 13-65 (RWR), Plea Agreement at 5
¶ 5C (“[N]either party will seek any departure or adjustment to
the Estimated Guidelines Range, nor will either party suggest
that the Court consider such a departure or adjustment
. . . .”); United States v. Brown, Criminal Action No. 13-164
(RWR), Plea Agreement at 5 ¶ 5C (same).
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agreement[.]”). Even though Beshouri testified that he was “not
sure what there was to appeal [after the sentencing,]” Hr’g Tr.
at 76:21-22, his vigor during the sentencing makes it unlikely
that he, immediately following this hearing, would choose to
ignore or reject a directive of his client to file a notice of
appeal.
Beshouri also credibly testified that he would have filed
an appeal had he been asked to do so. Hr’g Tr. at 71:22-24.
Beshouri noted that it was his practice, when a client asked for
an appeal, to file the notice of appeal and immediately contact
the Federal Public Defenders’ Office so that the Federal Public
Defenders’ Office would assign the client a new appellate
attorney. Id. at 77:16-25. Beshouri further credibly testified
that he was aware that it was per se ineffective for an attorney
not to file an appeal when a client asked that an appeal be
filed. Id. at 77:6-8; Gov’t Resp., Ex. L, Beshouri Decl.
(“Beshouri Decl.”) at 1.
Bell did not present any evidence to rebut Beshouri’s claim
that it was Beshouri’s practice to file a notice of appeal when
his clients asked for one or to request that the Federal Public
Defenders’ Office assign a new attorney to cover any appeal.
Nor did Bell present evidence that Beshouri had any incentive to
lie, that Beshouri was not aware of the requirements to file an
appeal when a client asked for one, or that Beshouri was
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anything but vigilant in his defense of Bell (outside of Bell’s
testimony regarding his request for an appeal).
Instead, evidence suggests that Beshouri’s representations
of his practice are reliable. Beshouri had been practicing
criminal defense for 20 years at the time he represented Bell
and was knowledgeable of what was at risk when a client asks for
an appeal. Hr’g Tr. at 63:11-21. A risk is posed both for the
client who may have a meritorious claim on appeal and for the
attorney whose reputation is at stake if she or he fails to file
the appeal and later faces an ineffective assistance of counsel
claim, like the one here. Id. at 77:6-25; Beshouri Decl. at 1.
These consequences would have been heightened for Beshouri, who
testified that filing a notice of appeal would have been a
simple action that required minimal effort on his part, but
could have had huge professional consequences because he spent
at least 95 percent of his practice in criminal defense. Hr’g
Tr. at 63:11-21, 77:6-25; Beshouri Decl. at 1.
Further, Bell presents no evidence, outside of his claim
that Beshouri failed to file an appeal, to suggest that Beshouri
was not a zealous advocate for Bell. Nor has he presented
additional affirmative evidence of his conversation with
Beshouri following his sentencing hearing. While Bell testified
that his brother was in the holding cell at the time Bell asked
Beshouri to file an appeal, Hr’g Tr. at 12:10-14, Bell did not
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call his brother as a witness. Bell has not carried his burden
to demonstrate that, more likely than not, Bell asked Beshouri
to file an appeal immediately following the sentencing hearing.
Outside of the conversation in the holding cell, Bell
presented unrebutted testimony that Bell tried to contact
Beshouri via phone and mail, beginning two to three weeks after
the sentencing, “around Christmastime[,]” and into 2007. Id. at
17:15-18:24. 9 Thus, there is unrebutted testimony that Bell
asked Beshouri to file a notice of appeal within the 30-day
timeframe allotted to file an appeal due to “excusable neglect
or good cause[.]” Fed. R. App. P. 4(b)(4).
However, Bell has not produced any such letters from this
time period. There is unrebutted testimony that, unfortunately,
Bell was unable to make copies because Bell did not have access
to such material because he was placed in a restrictive housing
unit at the time. Hr’g Tr. at 18:25-19:14. Without more,
Bell’s unrebutted testimony is not enough to prove by a
preponderance of the evidence that Bell asked Beshouri to file a
notice of appeal.
It may be worth noting that Beshouri wrote Bell a letter in
October 2007 acknowledging that Bell asked Beshouri in October
9
However, Bell noted that “it was in 2007 when [he] really
started corresponding with [Beshouri] about the appeal.” Hr’g
Tr. at 21:22-25.
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2007 to file a motion to correct his sentence. 10 Resp. to Gov’t
Resp. to Nunc Pro Tunc Mot. 2255, Ex. A, Oct. 2007 Letter at 1.
Although October 2007 would have been long outside the 10-day
(or 30-day) timeframe, at best, this letter corroborates Bell’s
prior statements that Bell had reached out to Beshouri “for
months.” See Gov’t Resp., Ex. I, Oct. 2007 Letter; Hr’g Tr. at
22:5-9. Nevertheless, without additional proof of other letters
to Beshouri 11 (or evidence of Beshouri’s incredibility),
Beshouri’s letter to Bell in October 2007 does not prove that it
is more likely than not that Bell asked Beshouri to file a
notice of appeal within the 10-day (or 30-day) period he had in
which to do so. 12
10
Beshouri’s declaration, prepared eight years after the
correspondence, failed to acknowledge this correspondence.
Beshouri Decl. at 2. At the evidentiary hearing, Beshouri
amended his declaration to reflect the fact that his memory was
refreshed based on viewing the letter. Hr’g Tr. at 81:1-82:8.
Given the lapse of time, this is not sufficient, on its own, to
significantly undermine Beshouri’s credibility. Moreover, the
burden is on Bell to show that Beshouri should not be believed.
Pollard, 602 F. Supp. 2d at 168. Bell has not carried that
burden.
11
Beshouri noted that he did not have all of his
correspondence from this period. Hr’g Tr. at 78:13-22.
Therefore, it is possible that there were more letters from Bell
to Beshouri. However, this possibility is not enough to
demonstrate that it is more likely than not that Bell asked
Beshouri to file a notice of appeal timely.
12
At the evidentiary hearing, the government also presented
correspondence and filings by Bell. However, this evidence is
dated beyond the deadlines to file a notice of appeal and did
not mention Bell’s appeal. See Hr’g Tr. at 43:8-45:24
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At best, the record is at equipoise. Yet, ultimately, it
is Bell’s burden to prove that it is more likely than not that
the events happened in accordance with his testimony, and he has
failed to do so.
CONCLUSION
Because Bell has failed to prove by a preponderance of the
evidence that he asked Beshouri to file a notice of appeal, Bell
is not entitled to relief under 28 U.S.C. § 2255 and his motion
will be denied. An appropriate Order accompanies this
Memorandum Opinion.
SIGNED this 28th day of August, 2014.
/s/ .
RICHARD W. ROBERTS
Chief Judge
(discussing Gov’t Ex. 5, Bell’s letter to Beshouri in either
2008 or 2009 asking Beshouri to file for a sentence reduction in
light of a change in the sentencing guidelines); id. at 46:6-11
(discussing Bell’s 2008 motion to reduce his sentence because of
a change in the sentencing guidelines) (citing United States’
Proposed Findings of Fact and Conclusions of Law, Ex. 6); id. at
46:22-47:14 (discussing a letter to Bell from a different
attorney in 2009 discussing Bell’s motion for a sentence
reduction in light of the change in the sentencing guidelines).