TIMOTHY JAMES NEILL, JR. v. UNITED STATES OF AMERICA
No. 18-5350
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
September 5, 2019
19a0227p.06
DONALD, LARSEN, and NALBANDIAN, Circuit Judges
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuаnt to Sixth Circuit I.O.P. 32.1(b); Appeal from the United States District Court for the Middle District of Tennessee at Cookeville. Nos. 2:11-cr-00001-5; 2:14-cv-00013—Waverly D. Crenshaw, Jr., District Judge.
COUNSEL
ON BRIEF: Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Cecil W. VanDevender, UNITED STATES ATTORNEY‘S OFFICE, Nashville, Tennessee, for Appellee.
BERNICE BOUIE DONALD, Circuit Judge. In 2011, Timothy Neill, Jr. (“Neill“) pleaded guilty to being a felon in possession of a firearm, in violation of
I.
Neill has a lengthy criminal record, including multiple felonies. In 2010, he was on parole with the state of Tennessee, and in June of that year, he was photographed holding a semiautomatic rifle. As part of a federal investigation into gun trafficking, authorities discovered the photograph. On January 20, 2011, the state of Tennessee revoked his parole and took him into custody, imposing a sentence of more than forty-two months for the violation.
On March 2, 2011, based on the same photograph, he was indicted by federal agents for being a felon in possession of a firearm, in violation of
In preparation for Neill‘s federal sentencing, the рrobation office prepared a Presentence Investigation Report (“PSR“). According to the PSR, Neill had twenty-two criminal history points, establishing a criminal history category of VI, the highest category in the Sentencing Guidelines. His base offense level was twenty-three, which led to a Guidelines sentence range of 92 to 115 months.
During his sentencing hearing, defense counsel Benjamin Perry lodged numerous objections, all of which were overruled. The district court adoptеd the recommended findings in the PSR and sentenced Neill to ninety-two months imprisonment, to run consecutive to his state sentence for the parole violation. Notably, in imposing the sentence, the judge stated,
As to the sentence in this case, given the dangerousness of the underlying conduct and the Criminal History Category VI, which is as high as you can get, the Court will be inclined to sentence toward the high end of the guideline, but the Court takes into account your efforts to change, your concerns about your daughter which [have] changed [you] a bit.
The Court also wants to remind you that if you continue to do as you are currently that you will likely receive 54 days of good time credits, which will take off more than 14 months of your sentence which would be [an] effective federal sentence of about 76 or 78 months. You will get credit for the time you have been in custody so you will get an additional reduction on that. So considering the net effect of the sentence imposed by the Court, I don‘t believe the sentence is greater than necessary.
After the sentencing hearing, Perry consulted with Neill in regard to Neill‘s appellate strategy. Perry advised Neill that his best chance on appeal was to challenge a factual finding that concerned the number of bullets the magazine in the gun could hold. But Perry informed Neill that factual findings were difficult to overturn on appeal and that, even if he were successful, a sentence of ninety-two months would likely be within his new Guidelines range.
As to the possible disadvantages of an appeal, Perry informed Neill that the PSR did not list two of Neill‘s previous felonies, one for prescription fraud and the other for identity theft. Perry cautioned Neill that the felonies could be found if his case were remanded, which could lead the court to vary to the higher end of the Guidelines range at a resentencing. Perry was also concerned that the district court would choose to run Neill‘s federal sentence consecutive to those from the undisclosed felonies, adding to the cumulative amount of time he would be imprisoned. Additionally, Perry advised Neill that the prescription-fraud felony could qualify him as an Armed Career Criminal, which would subject him to a mandatory minimum fifteen-year sentence. Finally, Perry did not inform Neill that he could, or should, challenge the court‘s alleged error that he would receive credit on his federal sentence for his time spent in federal custody prior to being sentenced. Neill claims that he decided not to pursue an appeal based on Perry‘s advice.
After being paroled into federal custody in August 2013, Neill noted that he had not received credit against his federal sentence for his time spent in federal custody prior to being sentenced. In October 2013, Neill filed a pro se motion under
Perry did not file a Rule 36 motion on Neill‘s behalf, though, because, around this time, Neill had also filed a motion to vacate, set aside, or correct his sentence under
In July 2014, Neill‘s new attorney filed a motion under
As for Neill‘s
On January 13, 2017, the court denied Neill‘s
On January 23, 2018, after Beckles had been published, Neill moved the court to reopen his case and to reconsider his ineffective assistance of counsel claim.2 The court granted the motion but, again, denied the ineffective assistancе claim, holding that Perry had a valid trial strategy, even if he was mistaken about Neill possibly being sentenced as an Armed Career Criminal for the prescription-drug felony. The district court also found that Neill could show no prejudice because the sentencing judge had already denied Neill‘s argument that the judge had intended for Neill to receive thirteen months of credit on his federal sentence. This time, however, the court issued a certificate of appеalability, finding that reasonable jurists could disagree whether Neill received ineffective assistance
[b]ased on the sentencing judge‘s comments that Neill would be eligible for twenty-two months of pretrial detention credit, Neill‘s counsel‘s failure to object to those comments, and Neill‘s counsel‘s erroneous belief that the prescription fraud sentence could lead to Neill being classified as an Armed Career Criminal upon a possible remand after appeal[.]
On appeal, Neill argues Perry was ineffective because he did not adequately advise him of the advantages and disadvantages of appeal, and “[h]ad [Neill] been given accurate advice, there would have been at least a reasonable probability that he would have appealed.” Specifically, Neill submits three arguments. First, Neill alleges that Perry‘s advice was deficient because he did not inform Neill thаt Neill should have appealed based on the sentencing judge‘s statement that he would receive credit for his time spent in federal custody prior to being sentenced. Neill then asserts that Perry‘s concerns based on Neill being sentenced as an Armed Career Criminal and the risk of additional consecutive sentences were groundless and objectively unreasonable. Finally, Neill concedes that the judge could have imposed a longer sentеnce if he
would have known about his additional criminal history, but Neill argues that is a “weak reason to refrain from appealing.”
We begin by addressing the correct standard of review and then proceed to the merits of Neill‘s claims.
II.
“We review de novo a district court‘s denial of a
A.
Neill‘s argument, put succinctly, is that Perry gave him objectively unreasonable advice, which, when accepted by Neill, deprived him of the opportunity to appeal. As in any ineffective assistance of counsel claim, we have two questions to answer: (1) whether Perry‘s advice was objectively unreasonable, and (2) if so, whether Neill was prejudiced such that he is entitled to relief. See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Before we reach the merits of Neill‘s claims, however, we need to examine the more discrete issue of how Roe v. Flores-Ortega, 528 U.S. 470 (2000), which applied Strickland to a case involving сounsel‘s unconsented failure to file a notice of appeal, affects this case. Neill argues that this case fits comfortably under Flores-Ortega. We disagree.
In Flores-Ortega, the Supreme Court made two holdings. First, an attorney is per se ineffective if she disregards a defendant‘s express instructions to file an appeal. Id. Neill did not instruct Perry to file an appeal, so this holding does not apply.
Second, “[i]n those cases where the defendant neither instructs counsel to file an appeal nоr asks that an appeal not be taken, . . . the question [is] . . . whether counsel in fact consulted with the defendant about an appeal.” Id. at 478. In this context, “consult” means to advise “the defendant about the advantages and disadvantages of taking an appeal, and [to] mak[e] a reasonable effort to discover the defendant‘s wishes.” Id. at 478. However, counsel only has a constitutional duty to consult when “a rational defendant would want to appeal . . ., or [when] . . . this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Id. at 480. In all cases, though, “courts must ‘judge the reasonableness of counsel‘s challenged conduct on the facts of the particular case, viewed as of the time of counsel‘s conduct,’ and ‘judicial scrutiny of counsel‘s performance must be highly deferential[.]‘” Id. at 477 (quoting Strickland, 466 U.S. at 689-90) (internal citations omitted).
It is undisputed that Perry consulted with Neill after sentencing, and Neill ultimately decided not to appeal. The first issue, then, is whether Flores-Ortega extends to a situation like this one, where a defendant expressly declines to appeal but alleges he based the decision on counsel‘s unreasonable advice. The government‘s position is no. It posits that, once we determine a consultation occurred, that ends the matter; a court may not look into the advice given during the consultation. Of course, this would foreclose all challenges like the one presented here. The government‘s argument derives from dicta in Flores-Ortega, where the Court opined,
We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. . . . At the other end of the spectrum, a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently.
528 U.S. at 477. (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)). The government contends that these two statements represent the exclusive reach of
We are skeptical of the government‘s argument. Its position seemingly invites precisely what the Supreme Court counseled against in both Flores-Ortega and Strickland—imposing a bright-line rule in an ineffective-assistance claim without looking to the particular facts of the case. See Flores-Ortega, 528 U.S. at 478 (“We reject this per se rule as inconsistent with Strickland‘s holding that ‘the performance inquiry must be whether counsel‘s assistance was reasonable considering all the circumstances.’ The Court of Appeals failed to engage in the circumstance-specific reasоnableness inquiry required by Strickland, and that alone mandates vacatur and remand.“). Moreover, it seems that accepting the government‘s argument would mean licensing attorneys to give unreasonable advice at a critical stage in the proceedings, leaving the defendant with no recourse.3 Id. at 483. It is difficult to see how Strickland and its progeny can support this argument. Nevertheless, we need not resolve this issue because this case hinges entirely on Neill‘s failure to show prejudice.
In Flores-Ortega, the Cоurt held that it will presume prejudice in an ineffective assistance claim if a defendant can establish a reasonable probability “that, but for counsel‘s deficient performance, he would have appealed.” Id. at 471, 484. The Court did not require a showing of actual prejudice—in other words, that the defendant would have prevailed on appeal—because “the denial of [an] entire judicial proceeding itself, which a defendant wanted at the time and to which he had a right, . . . demands a presumption of prejudice.” Id. at 483.
Neill‘s claim presents precisely this issue. Therefore, as instructed by Flores-Ortega, we will presume prejudice if Neill can establish that, but for Perry‘s allegedly deficient advice, there is a reasonable probability he would have appealed.
With the proper legal standards in mind, we analyze the merits of Neill‘s claims.
B.
Neill cannot prevail because, even if we assume that Perry provided deficient advice, Neill has not established a reasonable probability that he would have appealed had he received competent advice from Perry.
In determining whether a defendant has demonstrated that he would have
In this case, Neill has not demonstrated that he would have appealed his sentence had he been given competent advice. To begin, there is nothing in the record that suggests Neill wished to appeal for any reason other than the possibility of receiving a shortened sentence. Therefore, the predominant factor in our analysis is the likelihood (as it would have appeared to Neill at the time he took his appeal decision) that he would have been better off had he appealed. Lee, 137 S. Ct. at 1965-66. He almost certainly would not have been better off. The thrust of Neill‘s argument is that his actual sentence did not reflect what the sentencing judge intended to impose. However, in ruling on the
Neill‘s only response is that the sentencing judge would want to be consistent, and a harsher sentence would be presumed vindictive. In so arguing, he overlooks that a presumption of vindictiveness for imposing a lengthier sentence following a successful appeal may be overcome with “objective information in the record justifying the increased sentence[,]” such as “any conduct or event coming to the judge‘s attention after the first sentencing that may throw new light upon the defendant‘s life, health, habits, conduct, and mental and moral propensities.” United States v. Russ, 600 F. App‘x 438, 444 (6th Cir. 2015) (citations and internal quotations
The only evidence tending to show that Neill would have pursued an appeal, even with these odds stacked against him, is his own testimony provided during the evidentiary hearing on his
appears to have found Neill‘s statement to be incredible. See R.E. 76-1, PageID #378 (“Based upon the testimony and evidence presented at the evidentiary hearing, Movant fails to show any factual or legal basis that Movant‘s counsel‘s performance was deficient in any way or that Movant suffered any prejudice from his counsel‘s performаnce.“). Second, the Supreme Court has admonished us that, rather than relying solely on “post hoc assertions from a defendant” about what he would have done, we must “look to contemporaneous evidence to substantiate a defendant‘s expressed preferences[,]” Lee, 137 S. Ct. 1958, 1967 (2017), and as described above, the contemporaneous evidence in this case does not substantiate Neill‘s testimony at his evidentiary hearing.
Accordingly, we find Neill has not demonstrated a reasonable probability that he would have appealed after he was sentenced had he received competent counsel.
III.
For the foregoing reasons, the judgment of the district court is AFFIRMED.