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Marshall v. United States

United States District Court, S.D. Georgia, Augusta Division

June 26, 2015

ARTHUR J. MARSHALL, JR., Movant,
v.
UNITED STATES OF AMERICA, Respondent. No. CR109-078

ORDER

G.R. SMITH, Magistrate Judge.

This 28 U.S.C. § 2255 proceeding is on remand from the Eleventh Circuit following Marshall's successful appeal of this Court's previous denial of his 28 U.S.C. § 2255 motion. Marshall v. United States, 592 F.Appx. 919 (11th Cir. 2015). The appellate court has directed this Court to conduct an evidentiary hearing on his ineffective-assistance-of-counsel (IAC) claims. Id. at 920. But there are some housekeeping matters that first need to be addressed.

I. BACKGROUND

After Marshall was indicted on 22 counts for, inter alia, bank and mail fraud, doc. 3, [1] he pled guilty to two counts and, as part of his plea bargain, agreed to waive his direct and collateral appeal rights.[2] Doc. 39; doc. 40 at 7; doc. 41. Noting the double waiver, doc. 60 at 39, the district judge sentenced him to 69 months. Doc. 55 at 2. Marshall took no appeal but filed this § 2255 motion, challenging only his sentence: "Petitioner does not contest his admission of guilt as he accepted his guilt and understands punishment is deserving [sic]. However, [he] contends that a sentence of 69 months is overstated.... [T]he imposed sentence... was... [factually unsupported and] based on clear error and miscalculation." Doc. 62 at 5.

Marshall acknowledges that he waived his right to file this § 2255 motion. Doc. 62 at 6. He admits that he had stated on the record that he understood what he was waiving. Id. at 7. But he insists he "did not understand the law, nor understand the ramifications of the plea agreement and its' [sic] appeal waivers when[, ] upon advice of Counsel, [he] entered into [his] plea agreement with the Government." Id. at 11 (emphasis added). Marshall claims that he realized, before his sentencing hearing, that his $100, 000-retained, lead attorney was unprepared. Kieran Shanahan allegedly pressured him to "[j]ust go along with everything and let me handle it, " and threatened to abandon him if he did not sign and thus accept the Presentence Investigation Report (PSI) that Marshall insists is erroneous.[3] Doc. 62 at 23.

Marshall says that he asserted his appellate rights after the sentencing hearing. He claims he "informed [Shanahan] that he wanted to appeal his sentence; [and] instructed [him] to file such Notice of Appeal ...." Doc. 62 at 24 (emphasis original). Counsel even "acknowledged to third parties of his intention of challenging the sentence." Id. at 45-46 (citing unsworn, third-party statements corroborating movant). Yet, Shanahan failed to file an appeal. Id. Citing Roe v. Flores-Ortega, 528 U.S. 470 (2000) and related precedent in his § 2255 motion, Marshall argued that counsel was per se ineffective for not taking an appeal.[4] Id. at 25-26.

Opposing Marshall's § 2255 motion, the Government invoked the double waiver. Doc. 68 at 5 ("It is enforceable and should be enforced to deny all of Marshall's claims here."). As for his IAC claims, it contended that "Marshall's belated, self-serving allegations of attorney ineffectiveness are completely contrary to his own sworn testimony at the change-of-plea hearing. His claims of attorney ineffectiveness, and his related claim that his guilty plea was involuntary, should be rejected. His guilty plea was voluntary, and the waiver of collateral attack therein bars his claims." Id. at 10. It further argued that the sentencing error claims were not cognizable under § 2255, are meritless, and procedurally defaulted, as Marshall had taken no appeal. Id. at 13-16. Finally, the Government relied on the collateral-attack waiver to oppose Marshall's IAC claim for his lost appeal. Id. at 16-19. It concluded with this:

The government has spoken to Kieran Shanahan, Marshall's Rule 11 and sentencing counsel, and Mr. Shanahan denies that Marshall asked him to file a notice of appeal. Furthermore, should this Court conclude that the collateral attack waiver does not bar this claim and then finds after an evidentiary hearing that Marshall did request an appeal, then the government concedes that an out-of-time appeal is the appropriate remedy.

Doc. 68 at 20 (emphasis added). Marshall replied and, among other things, stood on his lost-appeal claim. Doc. 73 at 31-32.

When it first ruled on his § 2255 motion, the Court upheld the double waiver in part, thus neutralizing most of Marshall's claims. Doc. 75 at 12 ("Grounds Two through Five are barred by the waiver.... [and] all but two of [his IAC claims] raised in Ground Six of his motion are similarly barred by the waiver."), adopted, doc. 80[5] Hence, Marshall's lost-appeal claim was barred by his double waiver because what he pled did "not call into question the validity of the collateral attack waiver or guilty plea...." Doc. 80 at 3-4, reconsideration denied, doc. 83. But the Court also granted Marshall a Certificate of Appealability on that issue. Doc. 80 at 4-5. As noted, the appeals court reversed because, while the case was on appeal, the Government altered its waiver-enforcement policy.[6] Marshall, 592 F.Appx. at 920. Thus, that court never reached the merits of the waiver defense, nor whether the government's policy change should be dispositive since, as explained in Mingo, 2014 WL 7184011 at * 1, the Court itself may be said to have relied on Marshall's double waiver in granting him, as it did here, sentencing leniency (acceptance-of-responsibility reduction, etc.).[7]

II. ANALYSIS

It is this Court's practice to request sworn affidavits or 28 U.S.C. § 1746 Declarations from allegedly errant lawyers and movants before a hearing. See, e.g., Mingo v. United States, 2014 WL 4926278 (S.D. Ga. Oct. 1, 2014) (noting lost-appeal claim and directing Mingo to rebut his lawyer's sworn assertions on court-supplied, 28 U.S.C. § 1746 Declaration). Despite Local Rule 12.1, [8] the Government furnished no affidavit from Shanahan here:

The government has spoken to Kieran Shanahan, Marshall's Rule 11 and sentencing counsel, and Mr. Shanahan denies that Marshall asked him to file a notice of appeal. Furthermore, should this Court conclude that the collateral attack waiver does not bar this claim and then finds after an evidentiary hearing that Marshall did request an appeal, then the government concedes that an out-of-time appeal is the appropriate remedy.

Doc. 68 at 20 (emphasis added).

In Mingo, another lost-appeal/IAC case, the Court considered defense counsel's affidavit about his Roe duty to confer. Counsel swore that Mingo elected not to appeal and even signed the Notice, which got waylaid and thus was never filed. Mingo, 2014 WL 4926278 at * 1. The Court directed Mingo to rebut that and provided him with a § 1746 Declaration form. It also warned him that it would tolerate no perjury.[9] Rather than comply, he moved to dismiss his case; it was promptly granted. Mingo, CR612-018, does. 1082, 1083 & 1088. A similar result occurred in Jones v. United States, 2015 WL 464243 (S.D. Ga. Jan. 28, 2015), where the Court presented the movant with a "Mingo Statement" form and similar perjury reminder. In response, he withdrew his lost-appeal claim. Id. at * 1, adopted, 2015 WL 892391 (S.D. Ga. Mar. 2, 2015). And in Elliott, CR413-115, doc. 73, the Court denied a lost-appeal claim based squarely on the movant's signature on the Notice (electing no appeal) in his case. Id., aff'd, doc. 78. There, counsel had timely filed the Notice. Doc. 62.

Here no party has declared, under penalty of perjury (§ 1746), much less under oath (sworn affidavit before a notary), that the facts supporting this lost appeal claim are true. See doc. 62 at 33 (signature page to Marshall's § 2255 brief bearing no § 1746 statement or notarization under oath); see also id. at 45-46 (unsworn, un-notarized bystander "affidavits" from his fiance and mother). Marshall did sign his § 2255 form motion under § 1746, id. at 66, but that document follows his non-form brief bearing all of his lost-appeal assertions. And though that may be more a function of the way the Clerk processed his filing, it is far from clear whether his § 2255 form's § 1746 declaration page applies to that brief (necessary to hold him responsible for any perjury contained within it).

More importantly, Marshall makes specific assertions about what he says he told Shanahan and what Shanahan said back to him, as well as Marshall's witnesses. The Court is told by the Government only that "Mr. Shanahan denies that Marshall asked him to file a notice of appeal, " but Shanahan has not submitted himself to any perjury sanction. Indeed, the government technically is advancing hearsay, see Rivers v. United States, 777 F.3d 1306, 1316-17 (11th Cir. 2015), [10] and on a pivotal point at that (again, if Marshall requested an appeal and Marshall ignored him, that is per se ineffective, entitling Marshall to a new appeal, see supra n. 4).

In light of the results reached in cases like Mingo, Jones, Eason, and Elliott (all four § 2255, lost-appeal cases disposed of without hearings), it therefore makes sense to direct pre-hearing affidavits (or § 1746 Declarations) to clarify the hearing issues, if not dispose of this case outright. Rosin v. United States, 786 F.3d 873, 878 (11th Cir. 2015) ("It is well-settled that the district court is not required to grant an evidentiary hearing when the defendant's claims are affirmatively contradicted by the record evidence, nor is a hearing required if the claims are grounded upon generalizations that are unsupported by the record evidence.").

III. CONCLUSION

Within 14 days of the date this Order is served, then, Shanahan shall file a sworn affidavit (the Government shall assist him) responding to each and every appeal assertion that Marshall has raised in his § 2255 filings. Within 14 days after the Government serves Marshall with a copy of Shanahan's affidavit, Marshall shall, on the attached § 1746 Declaration, " fully and completely rebut Shanahan's attestations where factual disagreement exists. (Again, the Court reminds Marshall that deliberate falsehoods in a § 1746 declaration can subject him to a prosecution for perjury.) See Mingo, 2014 WL 4926278 at *1 (form § 1746 Declaration). He must place it in his prison's mail system by the 14th day following the Government's service of Shanahan's affidavit upon him. Meanwhile, Marshall's motion for appointment of counsel (doc. 88) is DENIED without prejudice to renew it after the Court resolves the next, "Mingo Statement" phase of this case.

SO ORDERED.


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