In re: Sealed Opinion
Defendant-appellant Richard Roe pled guilty to conspiring to possess with intent to distribute 280 grams or more of cocaine base (“crack”) and five kilograms or more of cocaine. Because of the quantities involved, Roe was subject to a mandatory minimum sentence of twenty years. Pursuant to a plea agreement, the government requested a sentence below the mandatory minimum. The district court sentenced Roe to fifteen years. Roe did not file a direct appeal; instead, he filed a 28 U.S.C. 2255 motion to vacate, set aside, or correct his sentence, arguing trial counsel was ineffective in failing to: (1) challenge the drug quantity at the sentencing hearing (“drug-quantity claim”) and (2) file a notice of appeal as requested (“failure-to-file claim”). The district court summarily denied the drug-quantity claim, concluding Roe’s guilty plea established the relevant quantity. It held an evidentiary hearing on the failure-to-file claim. Trial counsel testified Roe never told him to file an appeal because they never discussed the issue. In a post-hearing motion, Roe sought to amend his failure-to-file claim so it focused on trial counsel’s failure to consult with him as to whether an appeal should be filed (the “failure-to-consult claim”). The district court rejected, on two separate grounds, Roe’s failure-to-consult claim. It concluded the failure-to-consult claim was an untimely new claim that did not relate back to the failure-to-file claim set out in Roe’s original Section 2255 motion. In the alternative, the district court concluded the failure-to-consult claim failed on the merits. Roe filed and received a certificate of appealability to raise both the drug-quantity and failure-to-consult claims. The Tenth Circuit affirmed denial of Roe's 2255 motion: (1) when a criminal defendant enters a knowing and voluntary guilty plea to an indictment charging a drug conspiracy with an attendant quantity element, the defendant is subject to the enhanced penalties associated with that quantity; and (2) Roe’s failure-to-consult claim did not relate back to his failure-to-file claim and was, therefore, untimely. View "In re: Sealed Opinion" on Justia Law
