The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner John M. Sandfrey's ("Sandfrey") motion for relief pursuant to 28 U.S.C. § § 2255 (Doc. 1). The government has responded to the motion (Doc. 8), and Sandfrey has replied to that response (Doc. 10).
On December 7, 1995, Sandfrey was indicted on one count of conspiring to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (count 1), one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) (count 2), one count of distribution of methamphetamine within 1,000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1) and 860 s (count 3), and one count of storing a stolen firearm in violation of 18 U.S.C. § 922(j) (count 4). On February 7, 1996, a superseding indictment was returned making no substantive changes to the charges against Sandfrey. Sandfrey pled guilty on all counts pursuant to a plea agreement on May 16, 1996, and on August 26, 1996, the Court sentenced him to serve 151 months on count 1, 60 months on count 2, and 120 months on counts 3 and 4, all to run concurrent with one another for a total sentence of 151 months. Because Sandfrey had cooperated with the government pursuant to his plea agreement, the government requested, and the Court granted, a reduction in sentence of 50 months, leaving him with a 101 month sentence.
Sandfrey served his sentence and was released under the supervision of the Probation Office in March 2003. He did not, however, learn his lesson about respecting the rules and did not comply with his conditions of supervised release. On August 21, 2003, the Court held a non-compliance hearing, at which it found that Sandfrey had tested positive for drug use. The Court warned Sandfrey at that time that if he tested positive again, it would revoke his supervised release and reinstate the 50-month reduction in sentence Sandfrey had received from his cooperation with the government. Sandfrey assured the Court that he had a job and would stay "clean."
A mere two months later, on October 27, 2003, the government filed a petition to revoke Sandfrey's supervised release on five bases: (1) testing positive for methamphetamine use, (2) obstructing justice, (3) failing to make payments toward his fine, (4) associating with a felon, and (5) failing to report for urine tests for drugs. On December 5, 2003, the Court held a hearing at which Sandfrey admitted the violations alleged in the petition to revoke. Based on Grade B violations and Sandfrey's criminal history of I, the Court then found the guideline range of 4 to 10 months, selecting a 10 month guideline sentence and departing upward to reimpose the 50 month that Sandfrey's sentence had been reduced earlier, for a total sentence of 60 months.
Sandfrey filed a timely notice of appeal of the revocation judgment. While the case was on appeal, Sandfrey's attorney filed a motion to withdraw the appeal along with a document entitled "Acknowledgment of Attorneys Motion for Dismissal and Consent to Dismissal of Appeal"("Acknowledgement"). The Acknowledgment bears Sandfrey's signature and states:
I have been informed of my attorney's intention to move to dismiss my appeal.
I concur in my attorney's decision and hereby waive all rights to object or raise any points on appeal.
Pursuant to this filing, the Court of Appeals dismissed Sandfrey's appeal of the revocation judgment on January 23, 2004.
On December 22, 2004, Sandfrey timely filed this § 2255 motion. In it, he alleges that his counsel during the revocation proceedings provided constitutionally ineffective assistance of counsel by failing to file a notice of appeal after he requested that she do so. He also argues that the Court's reimposition of the 50 months his sentence had been reduced "based upon factors not charged in the petition to revoke" violated his right to a jury trial, his due process rights and his right not to be placed in double jeopardy.
In response, the government notes that Sandfrey's counsel did file a notice of appeal as Sandfrey requested and presents evidence that Sandfrey approved the dismissal of the appeal in an effort to garner another sentence reduction under Federal Rule of Criminal Procedure 35. The government further argues that Sandfrey's revocation sentence was proper and that pursuit of the appeal to a decision would not have been successful.
In his reply, Sandfrey's argument shifts to one based on ignorance. There he argues that he was never aware that his attorney had filed a notice of appeal, that he did not decide to move to dismiss his appeal and that he was not aware of the content or the significance of the Acknowledgment when he signed it. In addition, he ...