United States District Court, D. Columbia.
For JOSEPH SOOMAI, also known as TRINI, Defendant: Elita C. Amato, LEAD ATTORNEY, LAW OFFICES OF ELITA C. AMATO, ESQ., Arlington, VA.
For USA, Plaintiff: Jamie Brinkmeyer Perry, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Criminal Division, Narcotic and Dangerous Drug Section, Washington, DC; Melanie Laflin, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Criminal Division, Washington, DC; Robert Andrew Spelke, LEAD ATTORNEY, LAW OFFICES OF ROBERT A. SPELKE, Washington, DC.
RICHARD W. ROBERTS, Chief United States District Judge.
Defendant Joseph Soomai pled guilty in 2007 under a plea agreement to one count of conspiracy to distribute for importation to the United States five kilograms or more of cocaine, see 21 U.S.C. § § 959, 960, 963; 18 U.S.C. § 2. He now moves to vacate, set aside, or correct his sentence and judgment under 28 U.S.C. § 2255, arguing ineffective assistance of counsel because his trial counsel failed to appeal despite Soomai's request to file an appeal. The government opposes Soomai's motion, arguing that Soomai never asked his trial counsel to file an appeal, and trial counsel's failure to consult Soomai about an appeal was not constitutionally defective assistance. Because Soomai failed to prove that he asked his trial counsel to file an appeal, Soomai's motion will be denied.
From May 2005 to December 2006, Soomai, along with his accomplices, conspired to establish " a narcotics-smuggling cell in the United States" and met with an undercover agent to establish " a connection to supply illegal drugs, i.e., cocaine and heroin, to the Atlanta, Georgia, area." Stmt. of Facts in Supp. of Def.'s Plea of Guilty at 1, 8. Over several months, Soomai and the undercover agent negotiated heroin and cocaine purchases and deliveries. Id. at 2-7. Soomai and his co-conspirators were then arrested, id. at 7-8, and Soomai was charged with three counts drug trafficking, including conspiracy to manufacture and distribute to the United States cocaine and heroin. Soomai then pled guilty to conspiracy to manufacture and distribute into the United States five kilograms or more of cocaine and one kilogram or more of heroin. He was sentenced to 151 months of incarceration.
Soomai now moves under 28 U.S.C. § 2255, challenging his conviction. Soomai claims his attorney, David Bos, was ineffective because he failed to file an appeal despite Soomai's request after sentencing that Bos file a notice of appeal. Mot. Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody (" Mot." ). The government contends that Soomai did not request that Bos file an appeal. Govt.'s Opp'n to Def.s' Mot. Under § 28 U.S.C. § 2255. Because of the factual disputes on the record, an evidentiary hearing on the ineffective assistance of counsel claim was held on October 16, 2013.
In a § 2255 motion, a petitioner can move the sentencing court to " vacate, set aside or correct the sentence" if " the sentence was imposed in violation of the Constitution or laws of the United States, . . . or [if] the sentence was in excess of the maximum authorized by law[.]" 28 U.S.C. § 2255(a). The burden lies on the petitioner to prove the violation by a preponderance of the evidence. United States v. Pollard, 602 F.Supp.2d 165, 168 (D.D.C. 2009).
The Sixth Amendment provides criminal defendants the right to be represented by counsel. U.S. Const. amend. VI. Implicit in this guarantee is that counsel will provide effective assistance of counsel.
McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (" [T]he right to counsel is the right to the effective assistance of counsel." ). To establish that representation was constitutionally deficient, Soomai must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
To establish the performance prong, the petitioner must show that counsel did not provide reasonable service under the " prevailing professional norms" given the circumstances.
Strickland, 466 U.S. at 688. When counsel consults a client about an appeal, " [c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal."
Roe v. Flores-Ortega,528 U.S. 470, 476-78, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (" We have 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." ). If counsel has not consulted the client about an appeal, then he performs ...