Kilborn v. United States

CourtDistrict Court, E.D. Texas
DecidedNovember 8, 2021
Docket4:19-cv-00515
StatusUnknown

This text of Kilborn v. United States (Kilborn v. United States) is published on Counsel Stack Legal Research, covering District Court, E.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kilborn v. United States, (E.D. Tex. 2021).

Opinion

United States District Court EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

DOUGLAS KILBORN, #27463-078 § § v. § Civil Action No. 4:19-cv-515 § (Judge Crone/Judge Nowak) UNITED STATES OF AMERICA §

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On July 29, 2021, the report of the Magistrate Judge (Dkt. #20) was entered containing proposed findings of fact and recommendations that Movant Douglas Kilborn’s motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Dkt. #1) be denied, his claims be dismissed with prejudice, and a certificate of appealability be denied. Having received the report of the Magistrate Judge, having considered Movant’s Objections (Dkt. #24), and having conducted a de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge’s report as the findings and conclusions of the Court. RELEVANT BACKGROUND As set forth in the Magistrate Judge’s report, on November 8, 2017, a Grand Jury returned an Indictment charging Movant in one count with a violation of 18 U.S.C. § 922(g)(1), Felon in Possession of a Firearm. United States v. Pressley, No. 4:17-cr-00196-SDJ-KPJ-2 (E.D. Tex. Nov. 8, 2017), ECF No. 1. Following entry of a guilty plea to such count, Movant was sentenced to 120-months imprisonment on August 2, 2018. Id. ECF No. 68. Movant did not file a direct appeal. Movant filed this § 2255 Motion on July 11, 2019 (Dkt. #1). Movant alleges ineffective assistance of counsel, specifically that his trial counsel was ineffective for failing to file a notice of appeal (Dkt. #1 at p. 1). The Magistrate Judge appointed Movant counsel (Dkt. #11), and on September 30, 2020, a Tapp hearing (“Hearing”) was held (Dkt. #15). Tracy Batson appeared on behalf of the Government, and Joseph Mongaras appeared on behalf of Movant. At Hearing, the Court heard testimony from three witnesses: Mr. Frank Henderson (“Counsel”); Movant’s mother, Ms. Diane Louise Kilborn; and Movant (Dkt. #15). On July 29, 2021, the Magistrate Judge

recommended Movant’s Motion be denied and his case dismissed with prejudice (Dkt. #20). The Magistrate Judge concluded Movant failed to meet his burden of showing by a preponderance of the evidence that he directed Counsel to file an appeal. OBJECTION TO REPORT AND RECOMMENDATION On August 26, 2021, Movant filed his Objections to the Report of the Magistrate Judge (Dkt. #24). A party who files timely written objections to a magistrate judge’s report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(2)-(3). Movant raises two primary objections to the Magistrate Judge’s conclusion: (1) Movant’s testimony

demonstrates he wanted an appeal and did not understand his appellate rights; and (2) Counsel did not visit Movant post-sentencing to discuss an appeal (Dkt. #24 at pp. 2-7). The Court addresses the latter objection first. Objection – No Bright Line Post-Sentencing Movant objects that the Magistrate Judge’s analysis improperly focused on Counsel’s consultation with Movant prior to sentencing and that Counsel had a mandatory obligation to visit Movant at the facility at which he was housed after the sentencing hearing. Movant urges “it was objectively unreasonable for Counsel not to visit Movant after his sentencing hearing” and further represents “[m]any district courts in this area now make it a standard practice for attorneys to go and visit their client [at the facility] after sentencing” (Dkt. #24 at p. 2). The Magistrate Judge addressed this argument in her report, finding that existing authority, while establishing counsel has a duty to consult with a defendant, does not stand for a blanket obligation to consult after sentencing at the facility (Dkt. #20 at p. 13 n.4). Flores-Ortega, upon which Movant relies in advancing this point, states counsel has a

“constitutionally imposed duty to consult” with a 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.” Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). Here, the record reflects Counsel did discuss the advantages and disadvantages of filing an appeal and made a reasonable effort to determine Movant’s wishes. And while a court may impose specific requirements for counsel to consult with a defendant regarding the possibility of an appeal post-sentencing, Strickland does not extend this far. Id. at 479 (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)). The “Constitution imposes one general requirement: that counsel make

objectively reasonable choices . . . We cannot say, as a constitutional matter, that in every case counsel’s failure to consult with the defendant about an appeal is necessarily unreasonable, and therefore deficient.” Id. Further to this point, for example: [S]uppose 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.

Id. (quoting Strickland, 466 U.S. at 691) (citation omitted). This Court, as did the Flores-Ortega Court, rejects the adoption of the bright-line rule advocated by Movant. “[P]erhaps it would be a better practice for attorneys to specifically ask clients after they are sentenced whether they want to file a notice of appeal. Nonetheless, Tapp does not extend that far; instead, the question in Tapp is whether a defendant asked his attorney to file a notice of appeal and counsel failed to honor that request. The facts in this case do not satisfy Tapp, and the case law goes not further.” Jackson v. United States, No. 6:12CR00059-011, 2015 WL 10793743, at *1 (E.D. Tex. Aug. 19, 2015).

Movant’s Objection is overruled. Objection - Movant Has Failed to Demonstrate He Requested an Appeal Relatedly, Movant more generally objects that Counsel had a duty to consult and that Movant’s testimony demonstrates he wanted an appeal and did not understand his appellate rights. The Magistrate’s Report applies the correct legal standard for ineffective assistance of counsel in the context of failure to file an appeal (Dkt. #20 at p. 13, n.4). “‘Consulting’ is a term of art that means ‘advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes.’” United States v.

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Roe v. Flores-Ortega
528 U.S. 470 (Supreme Court, 2000)
United States v. Cong Van Pham
722 F.3d 320 (Fifth Circuit, 2013)

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Bluebook (online)
Kilborn v. United States, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kilborn-v-united-states-txed-2021.