United States v. Marcus Hicks
669 F. App'x 213
| 5th Cir. | 2016Background
- Marcus Deshaw Hicks, federal prisoner, filed a 28 U.S.C. § 2255 motion challenging his conviction and sentence for conspiracy to possess with intent to distribute >50 grams of a controlled substance.
- The district court dismissed Hicks’s § 2255 motion and denied a certificate of appealability (COA); Hicks appealed that denial.
- Hicks alleged appellate counsel was ineffective for failing to notify him in writing of his right to petition the U.S. Supreme Court for certiorari after this Court affirmed his conviction on direct appeal.
- This Court’s CJA Plan requires appointed appellate counsel to advise clients in writing of the right to seek certiorari; prior Fifth Circuit decisions granted § 2255 relief when counsel failed to do so.
- The panel found the procedural dismissal debatable as to the failure-to-notify claim, granted a COA on that issue, recalled its prior mandate, issued a new mandate reaffirming the conviction, advised Hicks of his renewed right to seek certiorari, and ordered appointment of counsel to assist Hicks with a certiorari petition.
- Hicks’s additional claims (involuntary plea due to counsel’s suppression-advice and ineffective appellate counsel for not raising plea involuntariness under the Fair Sentencing Act/Dorsey) were denied a COA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appellate counsel failed to notify Hicks in writing of right to seek certiorari | Hicks: counsel didn’t provide required written notice; deprived him of meaningful opportunity to seek certiorari | Government: district court dismissed § 2255 on procedural grounds | COA granted on this issue; district court’s dismissal was debatable; new mandate issued, Hicks advised of right to seek certiorari, counsel appointed to assist him |
| Whether district court’s procedural dismissal forecloses COA | Hicks: dismissal on procedural grounds should be found debatable | Government: dismissal proper | Court applied Slack standard and found the procedural ruling debatable as to notice claim; COA granted on that ground |
| Involuntary guilty plea based on trial counsel’s erroneous suppression-advice | Hicks: would have gone to trial absent counsel’s bad advice; plea was involuntary | Government: plea valid; no COA-worthy showing | COA denied for this claim; Hicks failed to make substantial showing |
| Ineffective appellate counsel for failing to argue plea involuntariness under FSA/Dorsey | Hicks: mandatory minimum reduced by FSA and Dorsey; appellate counsel should have raised plea involuntariness | Government: claim lacks merit for COA | COA denied for this claim; Hicks didn’t meet Slack standard |
Key Cases Cited
- Slack v. McDaniel, 529 U.S. 473 (2000) (standards for issuing COA when relief denied on procedural vs. merits grounds)
- Lacaze v. United States, 457 F.2d 1075 (5th Cir. 1972) (granting § 2255 relief where appellate counsel failed to advise defendant of certiorari right)
- Ordonez v. United States, 558 F.2d 448 (5th Cir. 1979) (similar relief for lack of certiorari notice by appellate counsel)
- Dorsey v. United States, 132 S. Ct. 2321 (2012) (holding Fair Sentencing Act’s reduced penalties apply to certain offenders sentenced after the Act took effect)