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United States v. Whaley

United States District Court, D. South Carolina, Orangeburg Division

July 22, 2019

United States of America,
v.
Gerald Decosta Whaley, Defendant.

          ORDER AND OPINION

         Before the court for review is Defendant Gerald Decosta Whaley's 28 U.S.C. § 2255 Motion to Vacate, filed on April 13, 2015. (ECF No. 252.) On November 13, 2017, the court granted the United States of America's (the “Government”) Motion for Summary Judgment (ECF No. 268) and denied Whaley's Motion to Vacate. (ECF No. 284 at 2.) On August 6, 2018, the United States Court of Appeals for the Fourth Circuit vacated in part the court's November 13, 2017 Order and remanded the case for further proceedings. (ECF No. 292 at 3-4.) For the reasons set forth below, the court GRANTS Whaley's Motion to Vacate and VACATES its original May 30, 2014 Judgment (ECF No. 244).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On January 14, 2014, Whaley pled guilty to knowingly possessing firearms in furtherance of drug trafficking crimes. (ECF No. 66 at 4; ECF No. 209 at 1-2; ECF No. 213 at 1.) On April 30, 2014, the court sentenced Whaley to two hundred sixty-two (262) months of imprisonment and five (5) years of supervised release. (ECF No. 244.) On April 13, 2015, Whaley filed a Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 252.) Whaley's Motion presented three ineffective assistance of counsel claims: (1) “fail[ure] to file a direct appeal after being informed by [Whaley] to do so” (ECF No. 252-1 at 3); (2) “fail[ure] to file a motion to suppress evidence” (id. at 6); and (3) “fail[ure] [at sentencing] to challenge and be objective to [Whaley]'s prior convictions” (id. at 8).

         On November 25, 2015, the Government filed a Response in Opposition to Whaley's Motion, an affidavit by Whaley's trial counsel, Jeffrey P. Bloom, and a Motion for Summary Judgment. (ECF Nos. 267; 267-1; 268.) In Bloom's affidavit, he asserted that “[i]n preparing this Affidavit, and made pursuant to the [c]ourt's order, I reviewed some of my notes, my time-sheets, my computer case file, and some of my actual paper files in this case.”[1] (ECF No. 267-1 at 1 ¶ 3.) According to Bloom, on January 14, 2014, while at the Lexington County Detention Center (“LCDC”), he “specifically reviewed with Mr. Whaley the final written plea agreement . . . . which would have included the specific waiver of appeal.” (Id. at 3 ¶ 8.) After Whaley was sentenced, Bloom avers that “on April 30, 2014, [he] met with Mr. Whaley and reviewed his sentence and related matters, and this included a discussion of the waiver of appeal as contained in a specific provision of the written plea agreement.” (Id. at 3 ¶ 9.) Bloom further asserts that he “saw no meritorious issue from which to appeal from concerning sentencing, especially since Mr. Whaley was sentenced at the low end of the advisory guideline range, and that the [c]ourt did not adopt the Government's argument for an enhanced sentence.” (Id. at 3 ¶ 10.) Bloom's affidavit did not address Whaley's claim that he “informed” Bloom to file an appeal. (ECF No. 252-1 at 5.)

         On January 13, 2016, in response to the Government's Motion, Whaley submitted his own affidavit. (ECF No. 271-1.) Whaley averred that he “informed [Bloom] at [s]entencing that [he] wished to file [a] direct appeal. Although counsel informed [him] that it would be done, [Bloom] never fulfilled his obligation.” (Id. at 2 ¶ 2.) Prior to submission of his affidavit, on June 10, 2015, Whaley requested an evidentiary hearing on his Motion to Vacate. (ECF No. 261 at 1.) On September 8, 2016, the court denied Whaley's request. (ECF No. 277.)

         On November 13, 2017, the court granted the Government's Motion for Summary Judgment and denied Whaley's Motion to Vacate. (ECF No. 284 at 2.) As to Whaley's claim Bloom was ineffective for failing to file an appeal after being directed to do so, the court found

[Whaley] does not provide the court with any date, time, or circumstances surrounding his request that his trial counsel file an appeal. Because [Whaley] does not provide the court with any factual basis to support his contention, [Whaley] cannot meet his burden as required by Strickland.[2] Further, Defendant's counsel provided an affidavit wherein he presented to the court a factual summary of his representation of Defendant up to and after sentencing. (ECF No. 267-1.) In his affidavit, Defendant's counsel stated he discussed with Defendant the waiver of appeal when reviewing the final written plea agreement and after sentencing, and he did not see any meritorious issue from which to appeal from concerning sentencing. (Id. at 3.) Therefore, Defendant has failed to meet his burden on this issue.

(Id. at 8.) As to Whaley's other ineffective assistance of counsel claims, the court similarly found Whaley was unable to meet his burden under Strickland and denied Whaley a certificate of appealability. (Id. at 8-9.)

         Whaley appealed the court's order to the Fourth Circuit. (ECF No. 287.) On August 6, 2018, the Fourth Circuit found that

[i]n the proceedings below, Whaley filed an affidavit stating unequivocally that he informed his counsel at sentencing that Whaley wished to file a direct appeal, but that counsel failed to file one. Nothing in the district court record specifically rebuts this allegation. Because the success of this ineffective assistance claim ultimately hinges on a credibility determination, an evidentiary hearing was required, see [United States v.]Witherspoon, 231 F.3d [923, ] 925-27 [(4th. Cir. 2000)], and the district court abused its discretion by not holding one. Accordingly, as to this claim, we vacate and remand with instructions to grant Whaley a hearing on his claim that counsel failed to appeal the criminal judgment as directed.

(ECF No. 292 at 3.) As to Whaley's other claims of ineffective assistance of counsel, the Fourth Circuit denied Whaley a certificate of appealability and dismissed those claims. (Id. at 4.)

         On March 5, 2019, the court held an evidentiary hearing on whether Bloom failed to appeal the criminal judgment as directed. (ECF No. 300.) At the hearing, both Whaley and Bloom testified. Whaley testified that it took some time for him to get to a point where he wanted to plead guilty and that based on his discussions with Bloom, he thought he was going to receive a fifteen-year sentence. (ECF No. 302 at 11:19-21, 12:11-14.) Whaley further testified that he had problems with (and did not at all like) his sentence of two hundred sixty-two (262) months because prior to that, “the most time [he] ever spent in jail was three [(3)] days.” (Id. at 14:17-22, 15:1- 7.) Because Whaley thought he had received too much time, he testified that he “wanted to challenge . . . the time itself, because I knew that I shouldn't have been . . . looking at that much time.” (Id. at 15:8-19.)

         Whaley also testified that he did not recall many things. For example, he did not recall his Presentence Report (“PSR”) classifying him as a career offender and said that phrase did not “sound too familiar.”[3] (Id. at 13:21-24.) And although Whaley recalled some of what transpired during his plea colloquy, [4] he testified that he did not recall some of the discussion about his status as a career offender, even when confronted with the transcript of his plea colloquy by the Government. (Id. at 29:21-25, 30-32:1-24.) He also did not recall the PSR recommending a sentencing guideline range that started at two hundred sixty-two (262) months. (Id. at 14:1-5.) However, on cross-examination, the Government confronted Whaley with a letter from Bloom stating that Whaley was “classified as a [C]areer [O]ffender [and] the [PSR] places you in an advisory guideline range of 262 to 327 months.” (Id. at 28:21-25, 29:1-5.) Whaley testified that he did not remember receiving this letter. (Id. at 29:1-5.) According to Whaley, Bloom discussed with him the possibility of a two hundred sixty-two (262) month sentence for the first time after the court stated this possible sentence at his change of plea hearing. (Id. at 39:5-11, 42:4-7.) But, Whaley maintained that even after the court mentioned the possibility of a two hundred sixty-two (262) month sentence, Bloom told Whaley he could plead to fifteen (15) years. (Id.) On redirect, Whaley entered into evidence two letters from Bloom to Whaley regarding the possibility of a fifteen-year (or less) sentence. In the first, dated October 31, 2013, Bloom wrote,

[a]s I also stated during our [October 31 meeting], [Whaley] can earn a lesser sentence than [two hundred sixty-two (262) months] - and under the guidelines, the sentence would likely be in the ‘teens (we discussed examples of 12-15 years during our meeting) - in two ways: [1] For “acceptance of responsibility” you can earn a 3-level downward departure under the advisory sentencing guidelines; and [2] If you decide to be interviewed . . . then you may be eligible for a 5K1 downward departure motion by the Government.

(ECF No. 302 at 50:7-22; ECF No. 303 at 3.) In the second letter from Bloom to Whaley, dated December 3, 2013-a little over one month before Whaley pled guilty-Bloom wrote:

To make sure I have communicated clearly, under the plea offer the sentence starts, again under the Guidelines around 21 years but then drops to around 15 years with “acceptance of responsibility.” You have a potential for a further downward departure from the prosecution, through a Rule 35 or 5K1 motion, to under 12 years.

(ECF No. 302 at 51:18-25, 52:1-18; ECF No. 303 at 6.)

         Whaley also testified that he did not recall his plea agreement including an appeal waiver, though he did state that both Bloom and the court went over his plea agreement with him. (Id. at 15:20-21, 16:7-16.) But, on cross-examination, Whaley testified he did not remember Bloom going over the plea agreement with him. (Id. at 29:14-25.) Whaley further testified that he still would have wanted to challenge his sentence despite any appeal waiver. (Id. at 16:11-19.)

         As to his discussions with Bloom about wanting to appeal his sentence, Whaley testified that after the court pronounced his sentence, he told Bloom “this can't be true, [he] kn[e]w this c[ould]n't be right. . . . [and] [he] . . . fe[lt] it was too much time.” (Id. at 17:3-8.) Whaley also testified about whether he asked Bloom to appeal:

Q. . . . . Did you tell him you wanted to appeal?
A. Yes, I did.
Q. Did you tell him you wanted to appeal on more than one occasion?
A. Yes, sir.
Q. Where and when did you tell Mr. Bloom that you wanted to appeal?
A. He came back to the county.
Q. Okay. When was that?
A. That was Lexington County probably like I think it was the next -- that next day. . . . .
Q. Who else was [in the room]?
A. It was just me and [Bloom]. . . . .
Q. During that meeting in the days after your sentencing, did Mr. Bloom tell you . . . Whaley you understand you've got a right to appeal your sentence? Did he tell you that?
A. Yes, sir.
Q. Did he tell you that you've got to file a notice of appeal within 14 days of receiving the sentence?
A. Yes, sir.
Q. Did he tell you that if you tell me to file a notice of appeal, I will file ...

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