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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KIMBERLY DUKES FORD, )

) Case Nos.:

Petitioner, ) 3:03cr135 and 3:05cv127/LAC/MD

) 3:04cr11 and 3:05cv129/LAC/MD

v. )

)

UNITED STATES OF AMERICA )

)

Respondent. )

)

)

OBJECTIONS TO THE MAGISTRATE JUDGE’S RECOMMENDATION1

On August 18, 2005 Magistrate Judge Miles Davis entered a

recommendation denying petitioner relief. The petitioner respectfully objects to

the decision for the reasons stated herein.

 1 These objections were e-filed in Case Number 3:04cr11 on August 31, 2005. Although filling

was attempted on Monday, August 29, 2005, the server for the Northern District of Florida was

down due to Hurricane Katrina. Initially, the petitioner’s objections were only filed in Case

Number 3:04cr11 due to a discrepancy on the ECM/CF site which did not allow the Petitioner to

file in Case Number 03cr135 because she was designated as a “terminated” party. A docket

clerk in the District Clerk’s office has since corrected the problem and the Petitioner’s

Objections are hereby filed under Case Numbers 3:03cr135 and 3:04cr11.

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INTRODUCTION

Kimberly Dukes Ford challenges her detention in federal prison pursuant to

28 U.S.C. §2255. In her initial petition, Ms. Ford alleged she wished to appeal her

sentence, but was advised by her attorney, Mr. Couch, that she should forego her

appeal in hopes that by doing so the Government would more likely file a motion

for a sentence reduction pursuant to Rule 35 of the Federal Rules of Criminal

Procedure. The government never filed a motion for a sentence reduction and she

alleged that she would have pursued her appellate rights were it not for Mr.

Couch’s advice.

There does not appear to be any dispute with respect to the facts in this case.

The magistrate judge’s recommendation rejects Ms. Ford’s contention as a matter

of law. The magistrate judge ignores the body of case law cited by Ms. Ford to

support the proposition that the government may not penalize a defendant who

chooses to exercise a constitutional right, such as the right to appeal, by 

withholding a motion to reduce the defendant’s sentence for substantial assistance.

The magistrate judge, instead, relies on an unpublished district court decision out

of the Southern District of New York. This opinion, in a conclusionary fashion,

states that a defendant may waive her appellate rights as a sign of “good faith” in 

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the hopes of receiving a motion for a reduced sentence. Khan v. United States,

2000 WL 1738414 (S.D. N.Y. 2000).

The magistrate judge also relies on a very recent district court decision out

of the Northern District of Illinois. This court, when presented with the identical

claim made in this petition, considered the merits of the defendant’s prospective

appeal, and concluded that the defendant would not have been harmed by

foregoing her appellate rights. United States v. Voltl, 200 WL 563204 (N.D. Ill.

2005).

These two district court decisions are contrary to the Supreme Court

decision in Wade v. United States, 504 U.S. 181 (1992). In Wade, the Supreme

Court held:

Federal district courts have authority to review a prosecutor’s refusal to file

a substantial assistance motion and to grant a remedy if they find that the

refusal was based on an unconstitutional motive. Thus, a defendant would

be entitled to relief if a prosecutor refused to file a substantial assistance

motion, say, because of the defendant’s race or religion.

Id. at 185-86.

Subsequent to Wade, the third circuit was presented with the issue of

whether the government can withhold a motion for sentence reduction solely on

the basis that the defendant chose to exercise a constitutional right such as the right

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to trial or appeal. In United States v. Paramo, 998 F.2d 1212 (3rd Cir. 1993) the

defendant and two other alleged co-conspirators in a money laundering scheme

agreed to cooperate. The two co-conspirators agreed to plead guilty; the

defendant, however, chose to go to trial solely on the issue of whether the conduct

to which all three defendants had admitted, was, as a matter of law, a violation of

the money laundering statutes. The government made downward departure

motions on behalf of the two defendants who pleaded guilty. Although the

government asserted that it was not filing the motion on behalf of the defendant

who went to trial for several ostensibly valid reasons, the third circuit remanded

the case to the district court so that the defendant would have an opportunity to

show such claims were pretextual. In so holding, the third circuit made clear that

withholding the motion solely on the basis that the defendant exercised his right to

trial would be constitutionally impermissible. Id., at 1220-21.

A similar issue arose in the ninth circuit in the case of United States v.

Treleaven, 35 F.3rd 458 (1994). In Treleaven, the government prosecutor

improperly contacted the defendant without notifying his attorney after he had

pleaded guilty. The defendant, as well as a co-defendant, testified before the grand

jury. Although the government made a motion to reduce the co-defendant’s

sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure, the

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government refused to file the motion on the defendant’s behalf. In this particular

case, the ninth circuit held that because the government violated the defendant’s

Sixth Amendment rights when it contacted him directly after his guilty plea, the

district court had authority to grant a downward departure motion for the

defendant’s substantial assistance even in the absence of a government motion. Id.

at 460-63.

The ninth circuit addressed this issue again in United States v. Khoury, 62 

F.3rd 1138 (9th Cir. 1995). In Khoury, the defendant was granted a downward

departure motion at sentencing. The defendant, however, appealed the denial of

his motion to withdraw his guilty plea and the government agreed that his case

should be remanded to the district court. After being convicted at trial, the

defendant requested at sentencing that the government make the same downward

departure that it made previously. The government refused and the district court

also declined to reduce the defendant’s sentence. Id. at 1140-42. The court

remanded the case for resentencing, concluding, “[the defendant] has

presumptively established that the government has withdrawn its § 5K1.1 motion

because he forced them to go to the trouble of proving their case before a jury, as

was his constitutional right.” Id. at 1142.

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In United States v. Ruiz, 241 F.3d 1157 (9th Cir. 2001) yet another variation

of this issue arose. In Ruiz the defendant declined to accept a plea bargain on the

grounds that it required the defendant to waive her right to be informed of

exculpatory information. She pleaded guilty without a plea agreement and at

sentencing requested a downward departure on several bases. One basis was a two

point deduction for complying with the “fast track” program by which defendants

were rewarded with reduced sentences for entering guilty pleas early and declining

to file pretrial motions. The government opposed the “fast track” request. On

appeal the defendant contended that the government only opposed the request

because she refused to waive her right to receive exculpatory information. The

ninth circuit held that a defendant has a constitutional right to receive exculpatory

information from the government prior to entering a guilty plea, and that the

government acted in violation of the Constitution if it refused to recommend the

two point reduction because the defendant would not waive this right. On appeal,

the Supreme Court reversed the ninth circuit holding that a defendant does not

have a constitutional right to exculpatory information prior to entering a guilty

plea. United States v. Ruiz, 536 U.S. 622 (2002).

From these cases it seems clear that the Supreme Court’s decision in Wade

should be understood to prohibit the government from refusing to move to reduce a

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defendant’s sentence for substantial assistance for any unconstitutional reason, not

merely for race or religion as explicitly set forth in Wade. It thus seems

reasonable to conclude that an attorney who advises a client to give up an 

important constitutional right such as the right to appeal – on the assumption that

the government would inappropriately penalize the defendant for exercising her

constitutional right – renders deficient performance.

In short, the district court’s decision in Khan is incorrect in that it assumes,

as trial counsel did in this case, and contrary to the foregoing precedent, that it is

appropriate for a defendant to forego a constitutional right such as the right to a

trial or appeal, in the hopes that by doing so the government would make a motion

to reduce a defendant’s sentence for substantial assistance.

The district court’s decision in Voltl is incorrect for another reason. In order

to prevail on an ineffective assistance of counsel claim, the defendant must show

that not only was her counsel’s performance deficient, the defendant must show

that she was prejudiced by her attorney’s performance. Strickland v. Washington,

466 U.S. 668 (1984). In Voltl, and in the magistrate judge’s recommendation in

this case, the assumption is made that the defendant must show that her appeal had

merit. This assumption is contrary to law settled by a fairly recent Supreme Court

decision. In order to show prejudice in the context of a claim that a defendant

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improperly forfeited her right to an appeal, “a defendant must demonstrate that

there is a reasonable probability that, but for [counsel’s deficiency in relation to

filing a notice of appeal], [s]he would have timely appealed.” See Roe v. FloresOrtega, 528 U.S. 470 (2000) (in determining prejudice standard, Court reversed

ninth circuit’s bright line approach that appointed counsel has a duty to consult

with a client regarding appellate rights in every case.)

In this case, Ms. Ford is therefore able to show that she was prejudiced by

her trial counsel’s advice to waive her appellate rights. There is no controversy as

to whether Ms. Ford would have pursued her appeal if not for counsel’s

recommendation. Both her affidavit and her trial counsel’s affidavit agree that she

intended to file a notice of appeal and pursue her appellate rights, if it were not for

the advice of her attorney to waive her appellate rights as a “gesture of good faith.”

The magistrate judge errs, therefore, in his recommendations and conclusion of law

when he considers the merit of the potential appeal.

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CONCLUSION

This Court should find that Ms. Ford’s constitutional right to an appeal was

violated, grant the petition, and permit her to file a notice of appeal “out of time.”

Respectfully submitted,

___________/s/__________

FRANKLYN MICKELSEN

Tex. Bar No. 14011020

Broden & Mickelsen

2707 Hibernia Street

Dallas, Texas 75204

(214) 720-9552

(214) 720-9554 (facsimile)

Attorney for Defendant

Kimberly Ford

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CERTIFICATE OF SERVICE

I, Franklyn Mickelsen, certify that on August 29, 2005, I served a copy of the

foregoing pleading on Randall Hensel at the United States Attorney’s Office, 1

North Palafox St., Pensacola, Florida 32502, via first class mail.

______________/s/_____________

Franklyn Mickelsen

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