The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Petitioner Joseph Charles Carson's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1) (Petition). For the reasons set forth below, Carson's claims are denied.
Carson was charged in a one-count Indictment (Case No. 03-30084 (d/e 4)) with bank robbery by force or violence in violation of 18 U.S.C. § 2113(a)(1). Carson entered a guilty plea before United States Magistrate Judge Byron Cudmore on October 23, 2003. Carson's plea was accepted by United States District Judge Richard Mills on October 30, 2003. Carson was sentenced by Judge Mills on April 5, 2004, to 169 months imprisonment to run consecutively to the undischarged portion of a sentence that Carson was serving for a state case.
The Presentence Report (PSR) prepared by the United States Probation Office in anticipation of Carson's sentencing hearing recommended that Carson receive a three-level enhancement in offense level under U.S.S.G. § 2B3.1(b)(2)(E) for brandishing a dangerous weapon and that Carson be classified as a career offender under U.S.S.G. § 4B1.1. At the sentencing hearing, Carson, through defense counsel Karl Bryning, objected to the imposition of the three-level firearm enhancement under U.S.S.G. § 2B3.1(b)(2)(E), the imposition of which would have increased Carson's offense level from 22 to 25. The Court determined that it was unnecessary to rule on the objection, pursuant to Federal Rule of Criminal Procedure 32(i)(3)(B), because Carson's status as a career offender, to which no objection was made, dictated an automatic increase in offense level to 32, regardless of whether the § 2B3.1(b)(2)(E) enhancement was applied. See U.S.S.G. § 4B1.1(b). The Court determined that Carson's final offense level was 29 and that he fell in a Criminal History Category VI, resulting in a U.S.S.G. sentencing range of 151 to 188 months imprisonment. As set forth above, Judge Mills sentenced Carson to 169 months imprisonment.
Appeal admonishments were given at the time of sentencing. Case No. 03-30084: Minute Entry, dated April 5, 2004; Transcript of Sentencing Hearing (d/e 24), p. 28. Judgment was entered April 6, 2004.
On August 2, 2004, Carson filed a pro se Motion for Leave to Appeal (Case No. 03-30084 (d/e 18)), alleging that he had told Attorney Bryning, to file a Notice of Appeal, but Bryning failed to do so. Specifically, the Motion for Leave to Appeal stated:
Following the defendant's sentencing and well within the time frame permitted for the filing of a timely Notice of Appeal as provided for under the applicable rule of procedure, the defendant advised counsel of his desire to pursue direct appellate review. Specifically, the defendant expressed his view to counsel that he did not believe that he fit the criteria for classification as a career criminal. Likewise, the defendant advised counsel that he was improperly assessed a United States Sentencing Guidelines enhancement for the use of a firearm as no such firearm was ever used. Counsel assured the defendant that he would perfect an appeal. However, subsequent to numerous failed attempts to obtain information as to the status of the defendant's desired appeal from counsel, the defendant telephoned the United States Court of Appeals for the Seventh Circuit inquiring as to the disposition of his direct appeal, the clerk's office advised the defendant that no appeal was filed in this case. Immediately thereafter, the defendant finally was able to reach counsel while in his office, and without explanation, counsel informed the defendant that no appeal had been filed. Motion for Leave to Appeal, p. 2. The Court denied Carson's Motion for Leave to Appeal by Order dated August 10, 2004 (Case No. 03-30084 (d/e 19)). Carson filed a pro se Notice of Appeal (Case No. 03-30084 (d/e 20)) on October 4, 2004. The Court of Appeals dismissed Carson's appeal for lack of jurisdiction. Mandate of USCA, Case No. 03-30084 (d/e 25). Carson filed the instant Petition on March 28, 2005. By Text Order, dated April 6, 2006, the case was reassigned to this judge.
Carson's Petition raises three grounds for relief. First, Carson asserts that trial counsel was ineffective for failing to comply with his request to file a Notice of Appeal. He further asserts that the Court's imposition of the § 2B3.1(b)(2)(E) and the career offender enhancements during his sentencing hearing violated his Sixth Amendment rights. Finally, Carson asserts that he does not fit the requirements for a career offender enhancement. For the reasons set forth below, Carson's claims are denied.
This Court must determine whether Carson is entitled to an evidentiary hearing on any of his claims. Section 2255 Rule 8(a). Under Seventh Circuit precedent, "[a] section 2255 petitioner is entitled to an evidentiary hearing on his claims, when he alleges facts that, if proven, would entitle him to relief." Stoia v. United States, 22 F.3d 766, 768 (7th Cir. 1994). However, before he is entitled to an evidentiary hearing, Carson bears the burden of filing a detailed and specific affidavit which shows that he has actual proof of the allegations, rather than mere unsupported assertions. Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002).
Carson asserts that trial counsel was ineffective for failing to comply with his request to file a Notice of Appeal. Because Carson claims ineffective assistance of counsel, the Court must begin its analysis with Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court has expressly considered the application of Strickland in the context of counsel's failure to file a Notice of Appeal. See Roe v. Flores-Ortega, 528 U.S. 470 (2000). The Flores-Ortega Court noted that, because the Supreme Court has "long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable," the threshold inquiry is whether the attorney ignored his/her client's wishes. Id. at 477. "[F]iling a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant's wishes." Id. "If the client instructed the lawyer to file a notice of appeal and the lawyer failed to do so, both prongs of the Strickland test are satisfied and the client is entitled to a fresh appeal." Quintero v. United States, 316 F.Supp.2d 711, 719 (N.D. Ind. 2004) (citing Flores-Ortega, 528 U.S. at 477 ). Specifically, the lawyer's failure to file the requested appeal is professionally unreasonable, and "the client's instruction to file the appeal objectively indicates an intent to appeal, which conclusively satisfies Strickland' s prejudice prong." Id. (citing Flores-Ortega, 528 U.S. at 477 (failure to file is professionally unreasonable), 485 (instruction to appeal demonstrates prejudice component)).
Carson relies heavily on Flores-Ortega; the Government fails to address the case. Carson asserts that he is entitled to habeas relief under the threshold inquiry of Flores-Ortega because Bryning failed to comply with his request to file a Notice of Appeal. The Government concedes that a factual dispute exists between Carson and Bryning as to the circumstances surrounding Carson's request for a Notice of Appeal to be filed. See Government's Opposition to § 2255 Petition, ¶ 15. After reviewing the record as a whole, the Court finds that Carson fails to meet his required burden to obtain an evidentiary hearing on the issue and, further, that the evidence presented is insufficient to justify relief on this claim.
The Court notes that Carson's Petition is sworn and that, additionally, he attached his sworn Declaration in support of his claims. The Petition states that Carson explicitly requested that Bryning initiate an appeal and that Bryning told him an appeal would be taken. Petition, Attachment 1, Memorandum of Law, p. 2. The Petition continues, "After consulting counsel about the appeal, it was revealed that counsel stated that it was ...