United States v. Pollard ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-7562
BERKLEY S. POLLARD, a/k/a Tojo,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-96-210-JFM, CA-97-2065-JFM)
Submitted: March 24, 1998
Decided: April 7, 1998
Before MURNAGHAN, NIEMEYER, and WILLIAMS,
Circuit Judges.
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Dismissed in part and vacated and remanded in part by unpublished
per curiam opinion.
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COUNSEL
Berkley S. Pollard, Appellant Pro Se. Christine Manuelian, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Berkley Pollard appeals the district court's denial of his motion
under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997). Pollard
claimed that: (1) he was wrongfully given a three-point upward
adjustment of his offense level under the Sentencing Guidelines for
having been a leader and organizer in the conspiracy of which he was
a member; (2) there was insufficient information before the district
court for him to be sentenced under the guidelines range pertaining
to crack cocaine; (3) his counsel was ineffective in not objecting to
the three-point adjustment for leadership; (4) his counsel was ineffec-
tive in not objecting to the use of the Sentencing Guidelines for
cocaine base; and (5) his attorney failed to file an appeal as he
directed the attorney to do. Finding that Pollard makes a colorable
claim of ineffective assistance of counsel for failure to file an appeal,*
we grant a certificate of probable cause to appeal as to that claim, dis-
miss in part, and vacate and remand in part.
Pursuant to a plea agreement, Pollard pled guilty to two separate
acts of distribution of cocaine base in violation of 18 U.S.C. § 841(a)
(1994). The district court sentenced him to 165 months incarceration
on each charge, to run concurrently, five years of supervised release,
and the mandatory $50 special assessment. In his plea agreement, Pol-
lard expressly waived his right to appeal his sentence, including any
issues that relate to the establishment of the guidelines range, reserv-
ing only the right to appeal from an upward or downward departure
from the guidelines range established at sentencing. Pollard did not
waive his right to appeal his conviction, or an appeal based on inef-
fective assistance of counsel, prosecutorial misconduct, or involuntar-
iness of his guilty plea, except under limited circumstances.
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*See Becton v. Barnett, 920 F.2d 1190, 1195 (4th Cir. 1990).
2
To the extent these claims survive Pollard's waiver of his appeal
rights, we agree with the district court that the sentencing claims Pol-
lard raises are without merit. Pollard voluntarily agreed in his plea
agreement and in his Fed. R. Crim. P. 11 colloquy that he was a
leader in an extensive drug trafficking scheme. The district court was
entitled to rely upon these admissions in imposing sentence. See
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); Via v. Superinten-
dent, Powhatan Correctional Ctr., 643 F.2d 167, 171 (4th Cir. 1981).
Further, the statement of facts revealed that Pollard held a position of
some responsibility in the organization based upon his instruction to
an undercover officer that the officer should continue to contact Pol-
lard's co-conspirator for future drug purchases, and to call Pollard's
pager only if the co-conspirator did not respond. Pollard also admitted
both in the plea agreement and in the Rule 11 colloquy that the drug
involved was crack cocaine. Thus, Pollard is barred from contending
by way of a § 2255 motion that some drug other than crack was
involved. See id. Moreover, because there was no error, Pollard can-
not establish ineffective assistance of counsel relative to counsel's
failure to object to either the three-point adjustment for leadership or
the use of the guidelines for cocaine base. See Hill v. Lockhart, 474
U.S. 52, 58-59 (1985); Ostrander v. Green, 46 F.3d 347, 352 (4th Cir.
1995); See also Strickland v. Washington, 466 U.S. 668, 687-88, 694
(1984).
Pollard claimed in his § 2255 motion that counsel was ineffective
because she failed to note a direct appeal after she was allegedly so
instructed by Pollard. Pollard's counsel submitted an affidavit stating
that Pollard made no such request. Finding that Pollard failed to pres-
ent any issue that fell outside the scope of his waiver or which would
have entitled him to prevail on appeal, the district court found that an
evidentiary hearing was unnecessary, and dismissed Pollard's § 2255
motion.
This court has said "that a criminal defense attorney's failure to file
a notice of appeal when requested by his client deprives the defendant
of his Sixth Amendment right to the assistance of counsel, notwith-
standing that the lost appeal may not have had a reasonable probabil-
ity of success." United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993).
We find Peak dispositive because Pollard did not waive all of his
appellate rights. Cf. United States v. Wilkes , 20 F.3d 651, 653 (5th
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Cir. 1994) (attorney cannot be deficient for failing to raise claims
when defendant knowingly and voluntarily waived all appellate and
post-conviction relief). While the likelihood that Pollard could meet
the burden of proving any of the issues which arise from the rights
he did not waive is small, Peak eliminates the need for Pollard to
show actual prejudice. See Peak, 992 F.2d at 42. If counsel failed to
note an appeal as alleged, then Pollard was completely deprived of
assistance of counsel on direct appeal and relief is warranted.
The district court's factual finding that Pollard failed to demon-
strate any meritorious issues for appeal was not a proper basis for
denying relief on the claim that counsel failed to perfect the appeal.
The evidence at this juncture in the case reveals a conflict of constitu-
tional import between Pollard and his counsel as to whether Pollard
asked his attorney to file a direct appeal on his behalf. In light of this
conflict, we conclude that Pollard is entitled to a remand for an evi-
dentiary hearing and appropriate factual findings by the district court
on this claim.
In conclusion, we deny a certificate of probable cause to appeal all
claims other than Pollard's claim of ineffective assistance of counsel
for failure to file an appeal, and dismiss those claims. We grant a cer-
tificate of probable cause to appeal the limited claim of ineffective
assistance of counsel based on counsel's alleged failure to file an
appeal, vacate in part as to that claim, and remand that claim to the
district court for further consideration. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the Court and argument would not aid the deci-
sional process.
DISMISSED IN PART AND
VACATED AND REMANDED IN PART
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