United States District Court, S.D. Georgia, State Sboro Division.
G.R. SMITH, Magistrate Judge.
Previously in this 28 U.S.C. § 2255 proceeding brought by Martell Antwon Mingo, the Court directed his appointed lawyer, Thomas Charles Rawlings, to respond to Mingo's claim that Rawlings failed to comply with Mingo's request that a direct appeal be filed. CR612-018, doc. 1049, reported at 2014 WL 4702577. Rawlings attested that he duly consulted with Mingo about his direct appeal rights just alter the Court sentenced him. Doc. 1050 at 2. Mingo, he says, then signed the Court's "Notice of Post-Conviction Consultation Certification ("Notice") electing not to appeal. Id. at 2-3. This is not surprising, given Mingo's appellate waiver, as explained to him during his guilty-plea hearing. Doc. 1065 at 31, 34, 35, 37; see also doc. 1049 at 1-2 (he also waived his collateral appeal rights).
But then this case took a wrong turn. Rawlings swore that, immediately after he consulted with Mingo, he handed the Notice to the courtroom deputy clerk to file. Doe. 1050 at 2. Yet it is not in the record. By that point the Court "ha[d] been reviewing Mingo's § 2255 motion under Rule 4(b) of the rules governing 28 U.S.C. § 2255 proceedings. The Government ha[d] not been given a chance to respond." Doe. 1058, reported at 2014 WL 5393575. So, the Court gave it that chance. Id.
In its response, the government discloses the U.S. Justice Department's about-face on its waiver practices. Some background: Until recently, local prosecutors sometimes demanded and received direct and collateral review waivers from plea bargaining defendants. The government would then, upon receipt of a § 2255 motion, seek to enforce such waivers. See, e.g., Brown v. United States, 2013 WL 3831649 at *1 (S.D. Ga. July 23, 2013) (William Benjamin Brown, who pled guilty to failing to register as a sex offender and possessing ammunition as a convicted felon, moves for 28 U.S.C. § 2255 relief. The government contends that Brown's motion is barred, since he waived his rights to appeal and collaterally attack his conviction and sentence.") (cite omitted), adopted, 2013 WL 3967352 (S.D. Ga. Aug. 1, 2013).
But now - as will be shown below - the Department has changed its policy about pursuing new waivers. As for existing waivers, the policy seems to, be this: Where ineffective assistance claims could, in the judgment of the U.S. Attorney, reasonably have some basis, the government will not enforce the waiver. But where such claims lack even facial merit, it will. Hence, in this case:
The government will not invoke the collateral-attack waiver in Mingo's plea agreement to foreclose this particular [i.e., his lost-appeal ] claim. On October 14, 2014, Deputy Attorney General James M. Cole issued a memorandum announcing a new Department of Justice policy concerning claims of ineffective assistance of counsel: "[for cases in which a defendant's ineffective assistance claim would be barred by a previously executed waiver, prosecutors should decline to enforce the waiver when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant's ineffective assistance claim raises a serious debatable issue that a court should resolve." If Mingo's allegation is correct, then he suffered prejudice by missing a desired appeal. This Court should hold an evidentiary hearing to resolve this disputed issue of fact.
Doc. 1066 at 7-8.
In contrast, the government stands on Mingo's collateral appeal waiver on ineffective-assistance-of-counsel claims that do not go to his direct appeal right:
In his plea agreement, Mingo "voluntarily and expressly" waived "the right to collaterally attack the sentence in any post-conviction proceeding, including a 2255 proceeding, on any ground, " and without any exception. (Doc. 852 at 10.) A collateral attack "[w]aiver will be enforced if the government demonstrates either: (1) the district court specifically questioned the defendant about the waiver during the plea colloquy, or (2) the record clearly shows that the defendant otherwise understood the full significance of the waiver. " United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997). By signing his plea agreement, Mingo confirmed that he had read and understood the entire document, including the collateral-attack waiver. (Doc. 852 at 13.)
Id. at 8; see also McReed v. United States, 2014 WL 1238037, at *5 (S.D. Ga. Mar. 21, 2014) (collecting cases). Again, the Rule 11 transcript here shows that Mingo clearly understood his waiver. Doc. 1065 at 31, 34, 35, 37. The double waiver is enforceable.
Even if this Court rejects the Government's position (per the new Justice Department policy), it agrees with it that Mingo is entitled to an evidentiary hearing to resolve the factual conflict between Mingo and Rawlings - despite any showing that he knowingly waived his appellate and collateral rights. Doc. 1066 at 10. It is settled, after all, that an attorney's failure to file a requested notice of appeal is per se ineffective assistance of counsel. Roe v. Flores-Ortega, 528 U.S. 470, 483-86 (2000); Gaston v. United States, 237 F.Appx. 495, 495 (11th Cir. 2007). And a defendant claiming ineffective assistance on that score need not demonstrate an ability to raise meritorious issues on appeal. Roe, 528 U.S. at 477-78. Instead, he can prove ineffective assistance by showing a "reasonable probability" that he would have timely appealed had counsel not failed to file an appeal on his behalf. Id. at 484. This is the case despite his double waiver. Gaston, 237 F.Appx. at 497 (no burden to show the issue he would raise falls outside his waiver); Gomez-Diaz v. United States, 433 F.3d 788, 793 (11th Cir. 2005).
The double waiver, however, will most likely be enforced by the appellate court, which means a win here will net Mingo nothing more than a waste of judicial resources. See, e.g., Brown v. United States, 256 F.Appx. 258, 261-62 (11th Cir. 2007) (§ 2255 movant's right to collateral review was waived by sentence appeal waiver in plea agreement); Austin v. United States, 2014 WL 3385307 at *5 (S.D. Ga. Aug. 18, 2014). In any event, the Court determines whether Mingo is entitled to an evidentiary hearing on his lost-appeal claim by asking, under cases like Gomez-Diaz, 433 F.2d at 792-93, and Friedman v. United States, 588 F.2d 1010 (5th Cir. 1979), does the record conclusively negate the factual assertions in his § 2255 motion? Id. at 1015. If not, would Mingo be entitled to relief if his factual allegations are proved true? Id. If the answer is no and yes respectively, then the Court must conduct a hearing to ascertain the validity of those assertions. Id. 
Here the record fails to negate conclusively Mingo's "lost-appeal" claim. The "Notice" that Rawlings swears exists never made it into the record. So there is no documentation to negate Mingo's assertion - despite his signed, double-waiver guilty plea agreement - that he directed Rawlings to file a direct appeal. Compare Eason v. United States, CV614-073, doc. 2 at 9-10, 2014 WL 4384652 at *3 (S.D. Ga. Sept. 3, 2014) (rejecting same claim because the Notice form filed in that case proved that movant had expressly elected not to appeal), adopted, doc. 6, 2014 WL 4956680 (S.D. Ga. Oct. 2, 2014), COA denied, doc. 14 (S.D. Ga. Nov. 17, 2014). Hence, the Court is left with a swearing match.
An evidentiary hearing is thus warranted on Ground One of Mingo's § 2255 motion. Moore v. United States, 2014 WL 1152860 at *19 (S.D. Ala. Mar. 21, 2013) (ordering evidentiary hearing on conflicting evidence whether movant instructed attorney to file an appeal); Johnson v. United States, 2013 WL 6799204 at *11 (M.D. Fla. Dec, 23, 2013) ("Where, as here, a decision on counsel's ineffectiveness for failure to file a notice of appeal requires a credibility determination and the pleadings are insufficient to establish the content of the ...