4:07-cr-00130 | S.D. Ga. | Jun 12, 2008
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVIS ION JOHN W. BAUGHMAN, ) ) Movant, ) Case No. CV407-191 v. ) [CR407-130] ) )
UNITED STATES OF AMERICA, ) ) Respondent. ) REPORT AND RECOMMENDATION John Baughman has moved to vacate, set as/de, or correct h/s federal pr/son sentence under 28 U.S.C. § 2255. (Doc. 1.)1 The government opposes the mot/on. (Doc. 3.) For the follow/ng reasons, the mot/on should be DENIED. I. BACKGROUND
In Apr/l 2007, a federal grand jury returned an /nd/ctment charg/ng Baughman w/th one count of consp/racy to comm/t bank [1] Unless otherw/se noted, c/tat/ons are to the docket /n the movant's c/v/l case, CV407-191. "Cr. doc." refers to documents f/led under movant's cr/m/nal case, CR407-130. fraud and f/ve counts of bank fraud. (Cr. doc. 1.) On July 11, 2007, Baughman, represented by reta/ned attorney R/chard Darden, pled gu/lty to the consp/racy count. (Cr. docs. 21, 28.) He was sentenced to 36 months' /mpr/sonment, three years' superv/sed release, rest/tut/on /n the amount of $101,693.48, and a $100 spec/al assessment. (Cr. doc. 29.)2 On December 18, 2007, he f/led the present § 2255 mot/on. (Doc. 1.)
II. ANALYSIS
Baughman alleges that h/s counsel was /neffect/ve for fa/l/ng to f/le a not/ce of appeal after he requested that counsel do so. (Doc. 1, Br. at 2.) In add/t/on, he alleges that counsel fa/led to consult w/th h/m about whether an appeal should be f/led. ("d.)
The law /s well settled "that a lawyer who d/sregards spec/f/c /nstruct/ons from the defendant to f/le a not/ce of appeal acts /n a manner that /s profess/onally unreasonable." Roe v. Flores-Ortega, 528 U.s. 470, 477 (2000); Montemo/no v. Un/ted 5tates, 68 F.3d [2] The sentenc/ng judge departed from the adv/sory gu/del/nes range of 15 to 21 months' /mpr/sonment, sentenc/ng Baughman to 36 months' /mpr/sonment based on a v/ct/m /mpact statement. (Cr. doc. 42 at 16.) 416, 417 (11th C/r. 1995) (per cur/am). Because a defendant /s ent/tled to a d/rect appeal from h/s conv/ct/on as a matter of r/ght, Rodr/Buez v. Un/ted States, 395 U.S. 327" date_filed="1969-06-02" court="SCOTUS" case_name="Rodriquez v. United States">395 U.S. 327, 329-30 (1969), "an attorney's fa/lure to f/le an appeal after the defendant reguests h/m to do so ent/tles the defendant to an out-of-t/me appeal, even w/thout a show/ng that there would have been any v/able grounds for an appeal." Montemo/no, 68 F.3d at 417; Flores-Ortega, 528 U.S. at 477.
On February 25, 2008, the Court held an ev/dent/ary hear/ng on the matter. At the hear/ng, the Court heard test/mony from Darden and Baughman. Darden test/f/ed that between the t/me Baughman entered h/s gu/lty plea and the Court held h/s sentenc/ng hear/ng, he "regularly" spoke w/th Baughman regard/ng the sentenc/ng gu/del/nes. Transcr/pt of § 2255 Ev/dent/ary Hear/ng (here/nafter "Tr.") at 8. He expla/ned to Baughman that the gu/del/nes were d/scret/onary and that "the Judge could g/ve h/m bas/cally what he wanted to g/ve h/m." jd. at 9. Darden test/f/ed that /mmed/ately after the sentenc/ng hear/ng, he met w/th Baughman for forty-f/ve m/nutes to an hour /n h/s off/ce, at wh/ch t/me Baughman expressed h/s unhapp/ness w/th the sentence. Id. at 9, 14. Dur/ng the meet/ng, they d/scussed the poss/b/l/ty of an appeal, and Darden told Baughman that he d/d not bel/eve h/s sentence would be reversed on appeal s/nce "even though the Judge exceeded the gu/del/nes [he] d/dn't th/nk the Appeals court would do anyth/ng w/th /t g/ven the v/ct/m /mpact statement."Id. at 9. Darden expla/ned that he thought the "sentenc/ng gu/del/nes underest/mated h/s . . . overall cr/m/nal act/v/ty," and thus he d/d not th/nk the judge abused h/s d/scret/on /n exceed/ng the gu/del/nes. Id. Darden also expla/ned to Baughman that because the v/ct/m /mpact statement proved that the "actual loss /n th/s case was much greater than what was /nd/cated /n the sentenc/ng gu/del/nes," the appeals court probably would not set as/de the sentence. Id. at 10. Darden test/f/ed that although he told Baughman he had a r/ght to appeal, Baughman never /nd/cated that he wanted an appeal. Id. at 15. He further noted that /f Baughman had requested that he f/le an appeal on h/s behalf, he would have f/led the appeal even /f /t was mer/tless. 3 Id.
3 Darden test/f/ed that "/n every case [he] [has] had, /f [h/s] cl/ent at 14. Darden test/f/ed that he d/d not learn that Baughman wanted to f/le an appeal unt/l he was contacted by the Un/ted States Attorney's Off/ce regard/ng th/s § 2255 mot/on /n January 2008. Id. at 12.
Baughman relayed a very d/fferent vers/on of the events. He test/f/ed that Darden told h/m that he would charge h/m $15,000 /n order to f/le an appeal. Id. at 29, 31. He noted that dur/ng the/r post^sentenc/ng meet/ng, Darden expla/ned that the not/ce of appeal was a one-page form that Darden would s/gn and f/le w/th the Court, and he also expla/ned that dur/ng an appeal he would f/le a br/ef expla/n/ng the sentenc/ng dec/s/ons that they d/sputed. Id. at 41, 31. After Darden told Baughman that he d/d not "have a snowball's chance /n hell" of succeed/ng on appeal, he expla/ned to Baughman that /f he "would l/ke he could f/le a not/ce of appeal to protect [h/s] r/ghts." Id. at 32. Baughman then allegedly told Darden "I th/nk that /s what - I sa/d that /s what we should do." Id. /nstructed [h/m] to f/le an appeal, and [he] talked to h/m about /t, [he] would do so whether /t has any mer/t or not." Tr. at 20. He noted that most of the cases that he has appealed were w/th/n the gu/del/nes range and that many were at the low end of the gu/del/nes, yet he st/ll f/led an appeal. Id. at 20-21.
Mter cons/der/ng the confl/ct /n the test/mony regard/ng whether Baughman d/rectly requested that Darden f/le an appeal on h/s behalf, the Court cred/ts Darden's vers/on of the events and d/scounts Baughman's test/mony that he asked Darden to f/le an appeal. Darden /s an exper/enced and well-respected attorney who has been pract/c/ng law for 31 years, pr/mar/ly /n the area of cr/m/nal defense. He test/f/ed that whenever a cl/ent asks h/m to f/le an appeal he does so, even /f he sees no mer/tor/ous grounds for an appeal. He also test/f/ed that /n all of h/s years of pract/ce, th/s /s the f/rst case /n wh/ch he has been accused of fa/l/ng to f/le an appeal desp/te a defendant's request that he do so. Baughman, who stands conv/cted of a fraud-based consp/racy, was s/mply not a cred/ble w/tness at the ev/dent/ary hear/ng. The Court spec/f/cally f/nds that Baughman never requested that Darden f/le an appeal on h/s behalf, and /t has no doubt that /f Baughman had /nd/cated that he wanted to appeal h/s sentence, Darden would have prepared and f/led a not/ce of appeal. [4] [4] Baughman test/f/ed that Darden told h/m he requ/red a $15,000 reta/ner /n order to f/le an appeal. Tr. at 31. Baughman conceded, however, that Darden agreed to f/le a protect/ve not/ce of appeal w/thout the necess/ty of
@ Where the movant "ne/ther /nstructs counsel to f/le an appeal nor asks that an appeal not be taken," the Court must ask "whether counsel /n fact consulted w/th the defendant about an appeal." Flores-Ortega, 528 U.S. at 478. [5] Counsel must consult w/th the defendant about an appeal only "when there /s reason to th/nk e/ther (1) that a rat/onal defendant would want to appeal (for example, because there are nonfr/volous grounds for appeal), or (2) any add/t/onal fee, /d. at 41, and that he was prepared to pay Mr. Darden's fee for handl/ng h/s appeal. jd. at 42-43. (Mr. Darden d/d not address th/s /ssue dur/ng h/s test/mony, and he was excused as a w/tness before Baughman test/f/ed. jd. at 28.) Baughman, therefore, d/d not cons/der Darden's request for add/t/onal funds to be an obstacle to the prosecut/on of h/s appeal. jndeed, he test/f/ed that after the/r post-sentenc/ng d/scuss/ons, he was "pos/t/ve" that h/s appeal was /n the process of be/ng f/led by Darden. jd. at 33. The Court f/nds th/s test/mony to be suspect, for two reasons. F/rst, Baughman test/f/ed that Darden's reta/ner for handl/ng the tr/al phase of h/s cr/m/nal case was only $7,500, /d. at 35, and second, he conceded that he never made any arrangements to pay Darden the $15,000 he allegedly demanded for prosecut/ng an appeal. jd. at 38-40. Ord/nar/ly, /t takes more effort and resources to handle a cr/m/nal tr/al than to appeal a cr/m/nal conv/ct/on, and counsel generally set the/r fees accord/ngly, charg/ng less for the appeal than for the/r tr/al work. Further, although Baughman concedes that Darden agreed to f/le a not/ce of appeal, he cla/ms that Darden demanded an add/t/onal $15,000 to f/le an appellate br/ef. S/nce he never made any arrangements to pay that fee, /t /s unl/kely that he thought Darden was actually do/ng any appellate work on h/s behalf. The Court, however, does not need to belabor th/s /ssue, for g/ven /ts f/nd/ng that Baughman never asked Darden to f/le an appeal, Darden's fee arrangement for handl/ng an appeal /s s/mply /rrelevant. [5] Though counsel generally has a duty to consult w/th h/s cl/ent, /t /s poss/ble that "a sentenc/ng court's /nstruct/on to a defendant about h/s . . . r/ghts /n a part/cular case are so clear and /nformat/ve as to subst/tute for counsel's duty to consult." Flores-Ortega, 528 U.S. at 479-80. The government does not contend that the court's /nstruct/ons to movant /n th/s case were so /nformat/ve as to sat/sfy the consultat/on requ/rement. that th/s part/cular defendant reasonably demonstrated to counsel that he was /nterested /n appeal/ng." "d. at 4ru0. Apply/ng the Supreme Court's def/n/t/on of the term "consult," the Eleventh C/rcu/t recently held that "adequate consultat/on requ/res /nform/ng a cl/ent about h/s r/ght to appeal, adv/s/ng the cl/ent about the advantages and d/sadvantages of tak/ng an appeal, and mak/ng a reasonable effort to determ/ne whether the cl/ent w/shes to pursue an appeal, regardless of the mer/ts of such an appeal." Thompson v. Un/ted States, 504 F.3d 1203" date_filed="2007-10-18" court="11th Cir." case_name="Thompson v. United States">504 F.3d 1203, 1206 (11th C/r. 2007) (emphas/s /n or/g/nal).
After /mpos/ng Baughman's sentence, the sentenc/ng judge adv/sed h/m of h/s r/ght to appeal and expla/ned the ten-day deadl/ne /n wh/ch he must f/le a not/ce of appeal. (Cr. doc. 42 at 19.) The judge also expla/ned that Darden would cont/nue to represent h/m dur/ng an appeal. ("d.) In add/t/on, he noted that the Clerk of Court would prepare and f/le a not/ce of appeal on Baughman's behalf /f requested to do so. ("d.) Dur/ng the ev/dent/ary hear/ng, Baughman test/f/ed that he heard the
ru sentenc/ng judge "say someth/ng about an appeal," /nclud/ng the adv/ce that he had ten days /n wh/ch to f/le an appeal. Tr. at 44, 38.
Immed/ately after sentenc/ng, Darden met w/th h/s cl/ent /n h/s off/ce and expla/ned that although Baughman had the r/ght to appeal h/s sentence, he d/d not bel/eve that the appeals court would reverse the sentence, even though /t exceeded the gu/del/nes range. He expla/ned that he d/d not th/nk that the d/str/ct judge abused h/s d/scret/on /n depart/ng from the gu/del/nes as they "underest/mated . . . h/s overall cr/m/nal act/v/ty" based on the v/ct/m /mpact statement. Id. at 9. Although Darden /nd/cated that he thought an appeal would be fut/le, he never suggested that Baughman would be d/sadvantaged or comprom/sed by f/l/ng an appeal (except for the /mpl/c/t suggest/on that Baughman would be wast/ng h/s t/me and money). Darden adequately expla/ned Baughman's r/ght to appeal and the l/kely outcome should an appeal be f/led. After d/scuss/ng these /ssues w/th Baughman, Baughman fa/led to request that Darden f/le an appeal on h/s behalf. It was reasonable for Darden to conclude that h/s cl/ent, after be/ng fully adv/sed of h/s r/ghts and h/s attorney's v/ews, d/d not w/sh to pursue an appeal. The Court /s therefore of the op/n/on that Darden's consultat/on was adequate under Thompson, 504 F.3d at 1206.
Darden clearly acted /n a profess/onally respons/ble manner under Flores and Thompson. S/nce Baughman was fully adv/sed of h/s appeal r/ghts, and s/nce he knew that Darden thought that such an appeal would be fut/le and bel/eved that Baughman shared th/s v/ew, Darden d/d not err /n fa/l/ng to f/le a not/ce of appeal when h/s cl/ent never requested that he do so.
III. CONCLUSION
For the forego/ng reasons, the Court should DENY movant's § 2255 mot/on. SO REPORTED AND RECOMMENDED th/s 12th day of June, 2008. sI G.R. SMITH