US v. Michael Speed, No. 14-7298 (4th Cir. 2016)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on March 2, 2015.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7298 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL SPEED, Defendant - Appellant. No. 15-7375 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL SPEED, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:10-cr-00700-JFM-1; 1:14-cv-00583-JFM) Submitted: November 19, 2015 Decided: January 12, 2016 Before NIEMEYER, KING, and KEENAN, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Michael Speed, Appellant Pro Se. Benjamin M. Block, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In these consolidated appeals, Michael Speed challenges the district court’s orders denying postconviction proceeding. challenges district the In court’s § 2255 (2012) motion. relief Appeal order in No. his 14-7298, denying his 28 federal Speed U.S.C. We initially remanded the case to the district court with instructions that it rule on what should have been dispose of construed Speed’s counsel claims. 1 as a two Fed. R. remaining Civ. P. 59(e) ineffective motion assistance and of On remand, the district court denied Speed’s Rule 59(e) motion, and the case has been returned to this court. Speed’s appeal of the district court’s order denying his Rule 59(e) motion was docketed as Appeal No. 15-7375. On remand, the district court correctly docketed Speed’s Rule 59(e) motion and directed 1 the Government to respond to In his § 2255 motion, Speed asserted a claim that counsel provided ineffective assistance in failing to advise him of the possibility of pleading guilty without a plea agreement to the drug charge only, and failing to advise him of a potentially meritorious defense to the firearm charge. In his informal briefs in these appeals, Speed does not assert error in the district court’s rejection of these claims, and they are therefore not preserved for review in this court. 4th Cir. R. 34(b) (“The Court will limit its review to the issues raised in the informal brief.”). In his amended § 2255 motion, Speed claimed that counsel was ineffective in failing to timely file a notice of appeal of his criminal judgment despite being asked to do so (“appeal claim”), and in failing to investigate and develop a mental competency argument as a mitigating factor for sentencing. Those claims are preserved for appellate review. 3 Speed’s two remaining habeas claims. In its response, the Government opposed both of Speed’s remaining claims on their merits, but conceded evidentiary hearing. that the appeal claim necessitated an Thus, the Government requested that an evidentiary hearing be scheduled on this claim and that Speed be appointed counsel for the hearing. Rather than schedule an evidentiary hearing on the appeal claim, however, the district remaining § 2255 claims. court merely denied Speed’s With regard to Speed’s appeal claim, the district court stated: I will assume (if for no other reason than that the plea letter contained a paragraph waiving defendant’s right to appeal) that defendant was not advised by his counsel of the right to appeal. This assumption may or may not be correct. However, making the assumption will save the government the cost of returning defendant to Baltimore and will save significant time and expense of the parties. An appeal may not be taken to this court from the final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate § 2253(c)(1)(B) (2012). issue absent constitutional “a of appealability. U.S.C. A certificate of appealability will not substantial right.” 28 28 showing U.S.C. of the denial § 2253(c)(2). of When a the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional 4 claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 Cockrell, (2000); (2003). see Miller-El v. 537 U.S. 322, 336-38 When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. Under this standard, the movant must show that “reasonable jurists could debate whether (or, for that matter, agree that) the [motion] should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed quotation further.” marks appealability] Miller-El, 537 U.S. at omitted). Thus, “[t]he determination under § 2253(c) 336 (internal [certificate requires of an overview of the claims in the habeas petition and a general assessment of their merits.” must “look to the Id. District In this regard, this court Court’s application of [the Antiterrorism and Effective Death Penalty Act of 1996] to [the movant’s] constitutional claims and ask whether that resolution was debatable amongst jurists of reason.” Id. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. statute forbids it.” Id. 5 In fact, the We conclude that reasonable jurists could debate whether Speed’s appeal claim should have been resolved in a different manner and that the issue presented encouragement to proceed further. district court asserted that misconstrued counsel is to deserve First, it appears that the Speed’s failed adequate to claim. timely Although appeal the Speed criminal judgment against him despite being asked to do so, the district court characterized the claim as complaining of failure to advise Speed of his right to appeal. counsel’s These claims are not the same. And although the district court suggests that counsel committed no error because Speed’s plea agreement contained an appellate waiver, this is incorrect. The Sixth Amendment obligates counsel to file a notice of appeal when a defendant requests him to do so. (4th Cir. 2007). Strong v. Johnson, 495 F.3d 134, 138 Even a waiver of appellate rights in the defendant’s plea agreement does not absolve counsel of his duty to file a notice of appeal. United States v. Poindexter, 492 F.3d 263, 268-71 (4th Cir. 2007). Thus, counsel’s failure to file a notice of appeal following a defendant’s unequivocal and timely and request prejudices constitutes the appellate proceeding. objectively defendant because Id. at 268-69. 6 deficient it deprives performance, him of an Moreover, we find that the district court’s language makes it unclear whether the district court meant to grant or deny Speed’s appeal claim. First, although the district court’s most recent order denies Speed’s § 2255 claims, the district court appeared to assume counsel’s ineffectiveness so as to save the parties the cost and time of an evidentiary hearing. If the district court meant to grant Speed’s appeal claim, it failed to grant Speed appropriate relief - namely, reentering the criminal judgment against Speed to afford him an opportunity to file a timely criminal appeal. (4th Cir. 1993). A United States v. Peak, 992 F.2d 39, 42 review of the district court’s docket confirms that the criminal judgment against Speed has not been reentered so as to commence Speed’s criminal appeal period anew. On the other hand, if the district court truly meant to deny Speed’s appeal claim, it appears (based on the record as it currently exists) that the district conducted an evidentiary hearing. court should have first See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970) (“Unless it is clear from the pleadings and the files and records that the prisoner is entitled to no relief, [§ 2255] makes a hearing mandatory.”); cf. Poindexter, 492 F.3d at 267 (“Because the district court did not hold an evidentiary hearing to resolve the question of whether [movant] unequivocally instructed his attorney to file a timely notice of appeal, we must assume that [movant] did so 7 instruct for purposes of resolving his appeal.”). No evidentiary hearing was conducted by the district court. In sum, we conclude that reasonable jurists would disagree whether the district court correctly denied relief on Speed’s appeal claim. intended counsel Moreover, and regardless of the district court’s disposition claims, necessary on Speed’s additional before this ineffective action court may by the assistance district consider Speed’s court of is appeal. Accordingly, we grant a certificate of appealability on Speed’s appeal claim. We vacate the district court’s August 12, 2015 order and remand to the district court with instructions that it clarify its ruling pertaining to the appeal claim and conduct any further proceedings it deems appropriate. 2 In light of the complicated procedural history of this case, the district court should issue an opinion explaining its resolution of both of Speed’s remaining claims: that counsel was ineffective in failing to timely file a notice of appeal and in failing to investigate and develop a mental health argument for mitigation at sentencing. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials 2 We, of course, express no opinion as to the merits of this claim. 8 before this court and argument would not aid the decisional process. VACATED AND REMANDED 9
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