IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, )

Respondent/Plaintiff, )

vs. ) No. 3:03-CR-0078-N (06)

) No. 3:04-CV-2658-N (BH)

CHRISTOPHER JERMAINE JACKSON, ) ECF

ID # 30672-177, ) Referred to U.S. Magistrate Judge

Movant/Defendant. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

A. Nature of the Case

Movant, an inmate currently incarcerated in the federal prison system, filed this Motion to

Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The respondent is the United

States of America (government).

B. Procedural History

On March 27, 2003, a grand jury indicted movant for conspiracy to distribute cocaine in

violation of 21 U.S.C. § 846 and distribution of cocaine in violation of 21 U.S.C. § 841. On July 15,

2003, movant pled guilty to the conspiracy charge. In his plea agreement, he “waive[d] the right to

appeal his sentence on any ground, including any appeal right conferred by 18 U.S.C. § 3742” and

“further agree[d] not to contest his sentence in any post-conviction proceeding, including but not

limited to a proceeding under 28 U.S.C. § 2255.” He specifically reserved the right to appeal: “(a)

 

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the calculation of his relevant conduct under USSG § 1B1.3, (b) any punishment imposed in excess

of a statutory maximum, (c) any punishment to the extent it constitutes an upward departure from

the guideline range deemed most applicable by the sentencing court, and (d) ineffectiveness of

counsel.” On April 5, 2004, the Court held a sentencing hearing and sentenced movant to 168

months imprisonment; it entered judgment on April 7, 2004. Movant filed no appeal. 

On December 15, 2004, the Court received the instant pro se motion to vacate wherein

movant asserts that (1) his attorney rendered ineffective assistance by failing to appeal his conviction

and (2) his sentence violates Blakely v. Washington, 542 U.S. 296 (2004) and/or United States v.

Booker, 543 U.S. 220 (2005). 

In its response to the motion to vacate, the government argues that movant’s first claim has

no merit and his second claim is not cognizable on collateral review. Movant filed no reply brief. 

II. INEFFECTIVE ASSISTANCE OF COUNSEL

In Claim 1, movant argues that his appellate attorney rendered ineffective assistance by

failing to appeal his sentence. In its entirety, his argument on this claim states:

Petitioner’s counsel failed to provide the guarantees of the Sixth Amendment.

Counsel failed to file Defendant’s Notice of Direct Appeal. Counsel was requested

to do so, but neglected to file the appeal to contest the objection which increased

Petitioner’s sentence above the required amount of the indictment that was put forth

to the jury. Counsel violated Petitioner’s Constitutional rights to effective assistance

of counsel and it is Counsel’s obligation to file Notice of Direct Appeal when requested to do so by the Defendant. (Violation of the Sixth Amendment)

The government argues that this claim fails for a couple of reasons. First, because movant

waived his right to appeal except in specific circumstances not presented by this case, respondent

argues that the waiver provides “concrete evidence” that movant did not ask counsel to file an

appeal. Second, the government argues that movant’s vague reference that “counsel was requested”

 

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to appeal does not advance his claim because movant does not assert that he personally asked counsel to file an appeal, and former counsel for movant avers that the only request to file an appeal in

this case came from movant’s girlfriend well after the time for filing an appeal elapsed.

To successfully state a claim of ineffective assistance of counsel, the prisoner must demonstrate (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced

his or her defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to establish

either prong of this test requires a finding that counsel’s performance was constitutionally effective.

See id. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286

n.14 (2000). 

To determine whether counsel’s performance is constitutionally deficient courts “indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable assistance.”

Strickland, 466 U.S. at 689. Further, “[t]he reasonableness of counsel’s actions may be determined

or substantially influenced by the defendant’s own statements or actions.” Id. at 691. For instance,

“a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a

manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). On

the other hand, “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.” Id. A failure

to file an appeal is not per se deficient representation absent specific instructions to file an appeal.

Id. at 477-78. The appropriate inquiry is “whether counsel’s assistance was reasonable considering

all the circumstances.” Id. at 478 (quoting Strickland, 466 U.S. at 688). 

 

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To gauge the reasonableness of the assistance given in the specific context of a failure to file

a notice of appeal “when the defendant has not clearly conveyed his wishes one way or the other”,

Flores-Ortega provides:

In those cases where the defendant neither instructs counsel to file an appeal nor

asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a

separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal. We employ the term “consult” to convey a specific meaning – advising the defendant about the advantages and disadvantages of taking an

appeal, and making a reasonable effort to discover the defendant’s wishes. If counsel

has consulted with the defendant, the question of deficient performance is easily

answered: Counsel performs in a professionally unreasonable manner only by failing

to follow the defendant’s express instructions with respect to an appeal. If counsel

has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel’s failure to consult with the defendant itself constitutes deficient performance. That question lies at the heart of this case: Under

what circumstances does counsel have an obligation to consult with the defendant

about an appeal?

Id. at 477-78 (citation omitted). Although the Supreme Court recognized “that the better practice

is for counsel routinely to consult with the defendant regarding the possibility of an appeal,” it rejected a bright-line rule that a “failure to consult with the defendant about an appeal is necessarily

unreasonable, and therefore deficient.” Id. at 479. It found such a bright-line rule inconsistent with

“Strickland and common sense”, and provided examples of non-deficient conduct:

For example, suppose that a defendant consults with counsel; counsel advises the

defendant that a guilty plea probably will lead to a 2 year sentence; the defendant

expresses satisfaction and pleads guilty; the court sentences the defendant to 2 years’

imprisonment as expected and informs the defendant of his appeal rights; the defendant does not express any interest in appealing, and counsel concludes that there

are no nonfrivolous grounds for appeal. Under these circumstances, it would be difficult to say that counsel is “professionally unreasonable,” as a constitutional matter,

in not consulting with such a defendant regarding an appeal. Or, for example, suppose a sentencing court’s instructions to a defendant about his appeal rights in a

particular case are so clear and informative as to substitute for counsel’s duty to con-

 

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sult. In some cases, counsel might then reasonably decide that he need not repeat

that information.

Id. at 479-80 (citation omitted). The Supreme Court went on to hold that 

counsel has a constitutionally imposed duty to consult with the defendant about an

appeal when there is reason to think either (1) that a rational defendant would want

to appeal (for example, because there are nonfrivolous grounds for appeal), or (2)

that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. 

Id. at 480. Of course, when “making this determination, courts must take into account all the information counsel knew or should have known”, including the “highly relevant factor” of whether the

defendant pled guilty.” Id. Nevertheless, 

[e]ven in cases when the defendant pleads guilty, the court must consider such

factors as whether the defendant received the sentence bargained for as part of the

plea and whether the plea expressly reserved or waived some or all appeal rights.

Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal.

Id. In addition, when the defendant has been fully informed about his appellate rights and has waived those rights, an attorney does not render deficient representation by failing to file a notice of

appeal. Cf. White v. Johnson, 180 F.3d 648, 654-55 (5th Cir. 1999) (finding no waiver but recognizing that a waiver of appeal impacts the reasonableness of the attorney’s actions). 

Not only must movant show that his attorney was deficient in not filing an appeal on his

behalf, he must generally show that he was prejudiced by the deficiency of counsel. Although when

counsel fails to file a requested appeal, prejudice is presumed, see Rodriquez v. United States, 395 U.S.

327, 329-30 (1969), the Supreme Court has declined to presume prejudice in other cases where the

attorney has failed to file an appeal, see Flores-Ortega, at 484. It has instead applied “the critical

requirement that counsel’s deficient performance must actually cause the forfeiture of the defend-

 

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ant’s appeal.” Id. To show prejudice in cases where the defendant has not specifically requested his

attorney to file an appeal, the “defendant must demonstrate that there is a reasonable probability

that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely

appealed.” Id. 

In this instance, movant does not allege that he personally requested his attorney to file an

appeal. After the government pointed out the vagueness of his claim and presented an affidavit of

counsel that the only request to appeal came from movant’s girlfriend well after the deadline for

filing an appeal, movant filed no reply brief to contest the averments of counsel. The Court thus

finds from the uncontested facts before the Court that movant did not personally request counsel

to file an appeal on his behalf. However, nothing of record indicates whether counsel consulted with

movant regarding his wish to appeal. For purposes of this § 2255 action, the Court will assume

without deciding that counsel did not consult with movant regarding any appeal. Therefore, to

succeed on his claimed ineffective assistance due to his attorney’s failure to file an appeal on his

behalf, movant must show that the attorney rendered deficient representation when he failed to

consult with movant on this issue. 

Under the circumstances of this case, the Court finds no deficiency of counsel from the

failure to consult with movant about an appeal. The plea agreement contains a specific provision

regarding movant’s retained limited right to appeal. Movant makes no allegation that he did not

understand the provision. Nothing of record indicates that movant had any desire to appeal his

conviction or sentence. There is simply no reason to think that movant reasonably demonstrated

to counsel that he was interested in appealing. 

 

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There is also no reason to think that a rational defendant would want to appeal in this case.

Movant does not challenge the voluntariness of his plea or the waiver of his appellate rights. By his

voluntary plea and waiver, he retained only a limited right to appeal on three specific bases, not at

issue here. As stated in the plea agreement entered into by him, movant did not bargain for a

specific sentence. The Court, furthermore, did not impose a sentence that exceeded the statutory

maximum sentence. It did not upwardly depart from the applicable guideline range. Movant does

not seek to appeal the calculation of his relevant conduct, but instead contends that he wanted his

attorney to appeal his sentence based upon Blakely or Booker – cases that were decided after his time

for appeal elapsed. Such appeal does not fall within the limited appellate rights he reserved after

voluntarily pleading guilty and waiving his right to appeal. Movant has not overcome the presumption that his attorney’s conduct falls within the wide range of reasonable assistance. 

Movant here was fully aware of the limited extent of his appellate rights, but has presented

nothing to show that he wanted his attorney to perfect an appeal on his behalf. Furthermore,

because the claims raised in the instant motion to vacate do not fall within his reserved limited right

to appeal, counsel cannot be deemed to have rendered deficient representation by failing to present

them on appeal. Attorneys do not render deficient representation by failing to present waived issues

on appeal. 

For all of these reasons, the Court finds no deficiency of counsel based upon the failure to

file an appeal. In the absence of a deficiency of counsel, movant’s claim of ineffective assistance of

counsel necessarily fails. The Court, nevertheless, notes that, in light of the totality of the circumstances of this case, movant has demonstrated no reasonable probability that, but for counsel’s

 

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presumed failure to consult with him about an appeal, he would have timely appealed. Claim 1

provides no basis for relief in this § 2255 action. 

III. BLAKELY/BOOKER CLAIM

In his second claim, movant asserts that his sentence violates Blakely and Booker. As argued

by respondent, this claim is not cognizable on collateral review. See United States v. Turner, Nos.

4:00-CR-260-Y, 4:04-CV-346-Y, 2007 WL 636336, at *5 (N.D. Tex. Mar. 2, 2007) (relying on

United States v. Gentry, 432 F.3d 600, 601 (5th Cir. 2005) and In re Elwood, 408 F.3d 211, 213 (5th

Cir. 2005)). Such claim thus provides no basis for relief in this § 2255 action. 

IV. EVIDENTIARY HEARING

Upon review of the motion to vacate and the files and records of this case, an evidentiary

hearing appears unnecessary. No evidentiary hearing is required, when “the motion and the files and

records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255.

In this instance, the matters reviewed by the Court conclusively show that movant is entitled to no

relief. 

V. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the

Court DENY the Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to 28 U.S.C.

§ 2255 with prejudice. 

SIGNED this 28th day of June, 2007. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file

written objections to the proposed findings, conclusions, and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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