RICHARDSON v. United States

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KHALFINI RICHARDSON,

Petitioner, Civil Action No. 20-10045 (MAS)

OPINION

UNITED STATES OF AMERICA,

Respondent.

SHIPP, District Judge

This matter comes before the Court on Petitioner Khalfini Richardson’s motion to vacate

sentence brought pursuant to 28 U.S.C. § 2255. (ECF No. 1.) The Government filed a response

to the motion (ECF No. 5), to which Petitioner replied. (ECF No. 11.) Also before the Court is

Petitioner’s supplemental motion to vacate sentence (ECF No. 18), to which the Government also

responded. (ECF No. 22.) Petitioner did not file a reply. For the following reasons, the Court

denies Petitioner’s non-appeal related claims, denies Petitioner a certificate of appealability as to

the non-appeal related claims, grants a hearing as to Petitioner’s appeal related ineffective

assistance of counsel claim and as to the timeliness of that claim, and grants the Government’s

request for a finding of waiver of privilege and for permission to interview Petitioner’s prior

counsel.

1. BACKGROUND

Following a series of controlled purchases of cocaine and cocaine base from Petitioner and

several compatriots, as well as a search which recovered a substantial quantity of drugs, Petitioner

was arrested in January 2016. (See PSR 4 28-33.) Following the return of a superseding

indictment, Petitioner entered into a plea deal with the Government on October 13, 2017. (See

Docket No. 17-32 at ECF No. 90.) In that agreement, Petitioner agreed to plead guilty to a single

count of conspiring to distribute and possess with intent to distribute cocaine and cocaine base in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846 in exchange for the dropping of the

remaining charges against him and the agreement of the Government to seek no further charges

arising out of the drug conspiracy that led to Petitioner’s arrest. Ud. at 1.) In signing the plea

agreement, Petitioner directly acknowledged that this conviction would carry a mandatory

minimum sentence of five years and a maximum sentence of forty years, accompanied by fines,

fees, and a period of supervised release. (U/d. at 2.) The agreement also informed Petitioner that

his ultimate sentence would be “within the sole discretion of the sentencing judge.” (/d.) As part

of that agreement, Petitioner stipulated to various guidelines factors, including the amount of drugs

involved in his offense, credit for acceptance of responsibility, and the expected guidelines range

which would apply if the Court agreed with the stipulations. (/d. at 7-8.) The stipulations left

open, however, the question of whether Petitioner qualified as a career offender under the

guidelines, and permitted both parties to present arguments on that issue at sentencing. Ud.) The

agreement also contained a waiver of Petitioner’s appellate and collateral attack rights which, if

Petitioner were sentenced below the sentencing range applicable to a guidelines range of thirty

one, would bar any appeal other than an appeal which challenged the Court’s “determination of

the criminal history category.” (/d. at 8.)

In appearing before this Court in order to plead guilty, Petitioner also prepared and signed

an application for permission to enter a guilty plea. (Docket No. 17-32 at ECF No. 89.) In that

application, Petitioner certified that he had been informed of the forty year potential maximum

sentence, that he had not been promised a lighter sentence by anyone, and that he understood that

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his sentence was in the sole discretion of the sentencing judge who, following a consideration of

the advisory sentencing guidelines, could impose a term up to the forty year maximum. (/d.)

Petitioner’s application also contained an acknowledgement that Petitioner was aware of and

understood his appellate waiver. (/d.)

Petitioner appeared for a plea hearing on October 13, 2017. (ECF No. 5-1.) At that hearing,

after confirming his age, education, ability to understand proceedings, and the absence of alcohol

or drugs in his system, Petitioner confirmed that he had read and discussed the plea agreement

with counsel to his satisfaction, that he understood the agreement, and that he wished to plead

guilty because he was guilty of the charged offense. U/d. at 2-5.) Petitioner then affirmed that he

understood the rights he was waiving by pleading guilty and that he understood that his guilty plea

carried a mandatory minimum sentence of five years and maximum of forty years. (Ud. at 5-9.)

Petitioner also confirmed that no one had made him any promises or assurances as to his sentence

to persuade him to plead guilty. Ud. at 9-10.) Petitioner was also informed of the advisory nature

of the guidelines and this Court’s sentencing discretion. V/d. at 10-11.) Petitioner confirmed his

understanding of the appellate waiver contained in his agreement, agreed that he signed the

application to plead guilty, and stated that he understood the agreement and wished to plead guilty.

(/d. at 11-12.) Following a factual recitation of his underlying crime, Petitioner entered his guilty

plea, which this Court accepted. Ud. at 12-16.)

On February 21, 2018, Petitioner appeared for sentencing. (See ECF No. 17-32 at ECF

No. 125.) After argument, this Court found that Petitioner’s criminal history qualified for the

career offender enhancement, applied that enhancement, and found that Petitioner was subject to

a level 31 guidelines range, which warranted a sentence between 188 and 235 months. (/d. at

13-14.) After a consideration of the advisory guidelines and the circumstances of Petitioner and

his offense history, this Court departed downward and ultimately sentenced Petitioner to a term of

156 months. (Ud. at 30-31.)

Petitioner did not file a direct appeal. Instead, on August 5, 2020, this Court received from

Petitioner his initial motion to vacate sentence. (ECF No. 1.) In his motion, Petitioner avers that

he placed his motion into the prison mail system on February 13, 2019, with postage attached.

(ECF No. 1 at 8.) The postmark date on the envelope this Court received is illegible (see ECF No.

1-1), and Petitioner has presented no explanation for why his motion was not delivered to the Court

for eighteen months after he claims to have placed it into the prison mailing system. Petitioner

maintains, however, that he mailed his motion on February 13, 2019. (See ECF No. 11-1 at 2.)

Petitioner has provided no documentary or other evidence other than his own sworn statements in

support of that contention. Finally, Petitioner filed supplemental correspondence in the fall of

2021, which he chose to have construed as a supplement to his motion to vacate sentence. (See

ECF No. 18-20.)

Il. LEGAL STANDARD

A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging

the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:

A prisoner in custody under sentence of a court established by Act

of Congress claiming the right to be released upon the ground that

the sentence was imposed in violation of the Constitution or laws of

the United States, or that the court was without jurisdiction to

impose such a sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to collateral

attack, may move the court which imposed the sentence to vacate,

set aside or correct the sentence.

28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a constitutional

violation, to be entitled to relief the moving party must show that an error of law or fact constitutes

“a fundamental defect which inherently results in a complete miscarriage of justice, [or] an

omission inconsistent with the rudimentary demands of fair procedure.” United States v. Horsley,

599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert.

denied, 444 U.S. 865 (1979); see also Morelli v. United States, 285 F. Supp. 2d 454, 458-59 (D.N.J.

2003).

iI. DISCUSSION

A. An evidentiary hearing is necessary only as to the appellate ineffective

assistance claim.

A district court need not hold an evidentary hearing on a motion to vacate where “the

motion and files and records of the case conclusively show that the prisoner is entitled to no relief.”

28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545-56 (3d Cir. 2005); United States

v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). “Where the record, supplemented by the trial judge’s

personal knowledge, conclusively negates the factual predicates asserted by the petitioner or

indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required.” Judge

y. United States, 119 F. Supp. 3d 270, 280 (D.N.J. 2015); see also Gov't of V.L v. Nicholas, 759

F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen Quang Pham, 587 F. App’x 6, 8

(3d Cir. 2014); Booth, 432 F.3d at 546. As all of Petitioner’s claims, other than his claim that his

counsel failed to file an appeal after being directly told to do so, are either patently without merit,

time barred, or not cognizable under § 2255 as detailed below, no hearing is required to resolve

Petitioner’s non-appeal related claims. As a hearing is necessary to resolve the appeal related

ineffective assistance claim and to determine whether that claim is timely, this Court will order a

hearing as to those two issues for the reasons presented below.

B. Petitioner’s recusal request

In his supplement, Petitioner contends that this Court is biased against him and that this

Court should recuse from hearing his claims. The basis for this assertion is not entirely clear, but

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appears to arise from Petitioner’s belief that this Court providing him the opportunity to choose

whether to have his letters treated as a supplement to his § 2255 motion somehow amounted to a

constraining of Petitioner’s rights. (See ECF No. 18-2.) Generally, a judge need recuse himself

from a matter only where his impartiality may reasonably be questioned, an issue which will

usually arise only where the judge has expressed opinions or beliefs regarding a petitioner’s case

based on extrajudicial factors or where the judge has displayed “a deep-seated favoritism or

antagonism that would make fair judgment impossible.” Selkridge v. United of Omaha Life Ins.

Co., 360 F.3d 155, 167-68 (3d Cir. 2004). Petitioner has made no such showing. The only issue

Petitioner raises is the Court’s order permitting him to choose how his supplemental

correspondence should be characterized — an action that was hardly discretionary and was indeed

required of this Court by Castro v. United States, 540 U.S. 375 (2003). That action is in no way

indicative of bias or animus against Petitioner, and provides no basis for recusal. Petitioner’s

request that this Court recuse from this matter is therefore denied.

C. Timeliness

The Government contends that all of Petitioner’s claims in this matter are time barred.

Motions to vacate brought pursuant to 28 U.S.C. § 2255 are subject to a one year statute of

limitations which generally runs from the date on which the petitioner’s conviction becomes final.

28 U.S.C. § 2255(f). Where a petitioner fails to file a direct appeal, the petitioner’s conviction

becomes final on “the date on which the time for filing ... an appeal expired,” or fourteen days

after the entry of the judgment of conviction. Kapral v. United States, 166 F. 3d 565, 577 (3d Cir

1999): see also United States v. Johnson, 590 F. App’x 176, 177 Gd Cir. 2014); Fed. R. App. P.

4(b)(1)(A)G). Petitioner’s judgment of conviction was entered in this matter on February 21, 2018.

(Docket No. 17-32 at ECF Nos. 112, 114.) Petitioner’s conviction thus became final fourteen days

later, on or about March 7, 2018. Petitioner’s one year statute of limitations thus expired on March

7, 2019. Any claim raised by Petitioner after that date would, absent some basis for tolling, be

time barred. See, e.g., Fielder v. Varner, 379 F.3d 113, 122 Gd Cir. 2004) (holding that federal

habeas limitations statutes are applied on a claim-by-claim basis, and the timeliness of a single

claim will not render other, later raised claims timely).

Here, the Government contends that Petitioner’s initial habeas petition was not filed until

August 2020, well over a year after the one-year limitations period expired. In response, Petitioner

contends that he is entitled to the benefit of the prisoner mailbox rule, under which his motion to

vacate sentence would be considered filed as of the date it was handed over to prison officials for

mailing. See generally, Houston v. Lack, 487 U.S. 266 (1988). The prison mailbox rule first arose

in the context of the filing of notices of appeal, but has since been extended to habeas filings. In

the appellate context, the burden is generally on the prisoner to show that he is entitled to the

benefit of the rule, which will normally require that he submit a certification stating the date on

which it was handed over to prison officials and that postage was prepaid prior to this submission.

See, e.g., Council v. Nash, 400 F. App’x 680, 682 (3d Cir. 2010).

Although a number of circuit courts have considered what is required to either establish or

remove the protections of the rule in the habeas context, the Third Circuit has yet to fully outline

how challenges to the benefit of the rule are to be handled in proceedings such as this. Most circuit

courts to have considered the issue will at least require a petitioner to meet the requirements

applicable in the appellate context—a certification of prepaid postage and the date on which the

document was handed over—in order to be entitled to the rule’s protections, after which the

Government will be required to rebut the presumption that the petitioner filed his document on the

certified date. See, e.g, Ray v. Clements, 700 F.3d 993, 1008-11 (7th Cir. 2012); Grady v. United

States, 269 F.3d 913, 916 (8th Cir. 2001); see also Bullock v. United States, 655 F. App’x 739,

741 n.2 (11th Cir. 2016). Some circuits have placed a higher burden on the petitioner before

rebuttal will be required — such as a showing of diligence sufficient to support applying the

equitable mailbox rule, see Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001), or a requirement

that the petitioner’s initial certification set forth the “who, what, when, where, how, and why of

his alleged delivery to a prison official” in addition to “some other corroborating evidence,” to

warrant the rule’s protections. See Ray, 700 F.3d at 1011-12.

If the rules applied in the appellate context applied here, Petitioner would have made the

applicable showing needed to prima facie invoke the rule. Petitioner has certified that his initial

motion was handed over for mailing in February 2019 and had postage upon it at that time. If,

instead, the rule invoked in the Seventh Circuit were to apply, Petitioner has utterly failed to

provide any factual details regarding his handing over of his motion to vacate sentence, and

Petitioner would not be entitled to the rules’ protections. In the absence of specific guidance from

the Court of Appeals about how to apply the rule in this context, this Court is inclined to apply the

basic rule that the Third Circuit applies in the appellate context, under which Petitioner has made

his initial showing warranting the rule’s presumption. See Council, 400 F. App’x at 682. Petitioner

asserts that he handed over his initial motion to vacate sentence prior to March 7, 2019. If the

presumption is not rebutted, the two claims raised in his initial motion to vacate sentence would

be timely filed.

The Government argues that Petitioner’s certification is incredible on its face. Specifically,

Petitioner submits that he handed his motion to vacate over in February 2019, but it mysteriously

did not arrive to the Court until August 5, 2020. In the Government’s view, absent additional facts

such as the motion initially being returned or otherwise lost, there is no plausible explanation

available for this massive delay between Petitioner handing over the motion and receipt of the

motion by this Court. Petitioner, for his part, has made no attempt to explain the considerable

delay between his alleged mailing of the motion and its receipt by this Court. Petitioner instead

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stands by his certification, the only evidence he has provided. In light of the considerable delay

between the alleged mailing and the Court’s receipt, and the lack of any plausible explanation for

this delay, this Court finds that the delay amounts to sufficient evidence to call the credibility of

Petitioner’s certification into question. As the Court cannot fully judge Petitioner’s credibility in

the absence of live testimony, and as the Court in any event concludes that a hearing will be

necessary to resolve Petitioner’s appeal related ineffective assistance of counsel claim for the

reasons expressed below to the extent that it is not time barred, the Court will order a hearing on

those two issues. As Petitioner’s ineffective assistance of plea counsel claim is without merit for

the reasons expressed below, that claim will be denied on the merits at this time.

Turning to Petitioner’s supplemental § 2255 motion, Petitioner raises two claims — one

related to the calculation of various sentencing credits, and one in which he seeks to challenge his

career offender status in light of new Third Circuit caselaw. The Government contends that these

claims, raised for the first time in correspondence addressed to the Court in the late fall of 2021,

are clearly time barred to the extent they are proper bases for relief under § 2255. As Petitioner

has provided no basis for finding these claims timely, and as they were raised more than two years

after Petitioner’s one year limitations period expired, the Court agrees.!

' As noted above, the habeas time bar is calculated separately for each claim, and a new claim will

only receive the benefit of the filing of an earlier claim where it “relates back” to that earlier claim.

See Mayle v. Felix, 545 U.S. 644, 656-57 (2005). A claim will only relate back where it arises

from the same core of operative facts as a previously raised claim. /d. Here, Petitioner’s original

two claims challenged counsel’s advice as to the plea arrangement which Petitioner contends was

premised on a promised ten year sentence, and counsel’s alleged failure to file an appeal upon

request. Neither of those claims relate to the Third Circuit’s ruling in Nasir, which counsel could

not have foreseen at the time in light of then binding caselaw. In any event, Petitioner’s new claims

are not premised on the failure to file a notice of appeal on request or pre-plea promises, and thus

would not relate back to Petitioner’s original motion to vacate sentence. Those claims are thus

untimely under § 2255(f).

OQ

Even putting aside the time bar issue, however, Petitioner’s supplemental claims face an

additional insurmountable hurdle — they are not proper claims for relief under § 2255. Indeed, the

Third Circuit has explicitly held that a collateral challenge to a career offender guidelines

designation made under the advisory guidelines which was proper when decided but which would

no longer be proper under current caselaw is not cognizable under § 2255. See United States v.

Folk, 954 F.3d 597, 604 (3d Cir. 2020). Petitioner’s challenge to his career offender designation

in his supplemental filing is thus not cognizable under § 2255 and provides no basis for relief even

if it had been timely filed. /d.

Petitioner’s remaining supplemental claim is similarly defective. In that claim, Petitioner

contends that he should receive additional jail credits towards his sentence for time spent on bail

while wearing a monitoring device. (See ECF No. 18-1.) A claim challenging the computation of

jail credits, however, is not cognizable under § 2255, and must instead be brought in a petition

pursuant to 28 U.S.C. § 2241, filed in the district of current confinement, after exhausting

administrative remedies as to the credits issue. See Petlock v. United States, No. 22-344, 2022 WL

577966, at *3 (D.N.J. Feb. 25, 2022); see also D’Amario v. Warden Fairton FCT, 586 F. App’x

828, 830 (3d Cir. 2014). As Petitioner does not appear to have exhausted his claim before the

Bureau of Prisons, (see Docket No. 17-32 at ECF No. 130), this Court cannot hear this claim under

§ 2255. Petitioner’s credit claim is thus not cognizable under § 2255 and is dismissed as such.”

As neither of Petitioner’s supplemental challenges is cognizable before this Court, Petitioner’s

supplemental motion to vacate sentence is dismissed.

* The Court’s dismissal of this claim is without prejudice to Petitioner filing a § 2241 petition after

he exhausts this claim through the appropriate administrative channels.

mn

D. Petitioner’s ineffective assistance claims

In his original motion to vacate sentence, Petitioner raised two claims: first, that his plea

counsel improperly advised him as to his plea deal by telling Petitioner that he would receive a

ten-year sentence; and second, that counsel failed to file an appeal on his behalf when he so

requested. The standard applicable to claims of ineffective assistance of counsel is well

established:

[c]laims of ineffective assistance are governed by the two-prong test

set forth in the Supreme Court’s opinion in Strickland y.

Washington, 466 U.S. 668 (1984). To make out such a claim under

Strickland, a petitioner must first show that “counsel’s performance

was deficient. This requires [the petitioner to show] that counsel

made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed by the Sixth Amendment.” /d. at 687; see also

United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To

succeed on an ineffective assistance claim, a petitioner must also

show that counsel’s allegedly deficient performance prejudiced his

defense such that the petitioner was “deprive[d] of a fair trial .. .

whose result is reliable.” Strickland, 466 U.S. at 687; Shedrick, 493

F.3d at 299,

In evaluating whether counsel was deficient, the “proper

standard for attorney performance is that of ‘reasonably effective

assistance.” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A

petitioner asserting ineffective assistance must therefore show that

counsel’s representation “fell below an objective standard of

reasonableness” under the circumstances. /d. The reasonableness

of counsel’s representation must be determined based on the

particular facts of a petitioner’s case, viewed as of the time of the

challenged conduct of counsel. Jd In scrutinizing counsel’s

performance, courts “must be highly deferential . . . a court must

indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Strickland, 466

USS. at 689.

Even where a petitioner is able to show that counsel’s

representation was deficient, he must still affirmatively demonstrate

that counsel’s deficient performance prejudiced the petitioner’s

defense. /d. at 692-93. “It is not enough for the [petitioner] to show

that the errors had some conceivable effect on the outcome of the

proceeding.” /d. at 693. The petitioner must demonstrate that “there

is a reasonable probability, but for counsel’s unprofessional errors,

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the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Jd. at 694; see also Shedrick, 493 F.3d at 299, Where a

“petition contains no factual matter regarding Strickland’s prejudice

prong, and [only provides] . . . unadorned legal conclusion[s] . . .

without supporting factual allegations,” that petition is insufficient

to warrant an evidentiary hearing, and the petitioner has not shown

his entitlement to habeas relief. See Palmer v. Hendricks, 592 F.3d

386, 395 (3d Cir. 2010). “Because failure to satisfy either prong

defeats an ineffective assistance claim, and because it is preferable

to avoid passing judgment on counsel’s performance when possible,

[Strickland, 466 U.S. at 697-98],” courts should address the

prejudice prong first where it is dispositive of a petitioner’s claims.

United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002).

Judge, 119 F. Supp. 3d at 280-81.

Turning first to the plea claim, the Court notes that the right to effective assistance of

counsel does extend to the guilty plea context. In that context, counsel is required to provide a

criminal defendant with sufficient information to “make a reasonably informed decision whether

to accept a plea offer,” which generally requires that counsel discuss with him the facts of his case,

the likelihood of conviction at trial, and his comparative sentencing exposure under a proposed

plea in relation to a sentence following a conviction at trial. United States v. Bui, 795 F.3d 363,

366-67 (3d Cir. 2015) (quoting Shotts v. Wetzel, 724 F.3d 364, 376 (3d Cir. 2013)); see also Lafler,

566 U.S. at 163; Hill v. Lockhart, 474 U.S. 52, 57-58 (1985), An “erroneous sentencing prediciton

by counsel[, however,] is not ineffective assistance of counsel where . . . an adequate plea hearing

is conducted.” Bui, 795 F.3d at 367 (quoting Shedrick, 493 F.3d at 299). Even if a petitioner can

show that plea counsel was deficient, he must still show prejudice by providing facts which

indicate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different .. . [which i]n the context of pleas [requires] a

[petitioner] show the outcome of the plea process would have been different with competent

advice.” Lafler, 566 U.S. at 163. Where a petitioner accepted a guilty plea in the underlying case,

this will require that the petitioner show that, but for counsel’s error, there is a reasonable

probability that he would not have pleaded guilty and would have insisted on going to trial. Lee

v. United States, 582 U.S. 357, 364-65 (2017). Prejudice may not be premised solely on a

petitioner’s changed mind. To show prejudice, a petitioner must show that a decision to reject the

offered plea would have been rational under the circumstnces. Padilla v. Kentucky, 559 U.S. 356,

372 (2010).

Here, Petitioner asserts, contrary to the statements made in his plea agreement, application

to plead guilty, and plea hearing, that his counsel assured him he would only receive a ten-year

sentence, and that he would not have pled guilty absent that assurance. Initially, the Court notes

that a defendant’s “[s]olemn declarations in open court carry a strong presumption of verity,” and

the “subsequent presentation of conclusory allegations . . . [or] contentions that in the face of the

record are wholly incredible” are insufficient to refute that presumption. Blackledge v. Allison,

431 U.S. 63, 73-75 (1977). As Petitioner directly told this Court in his plea hearing that no such

promise was made to him to induce his plea, his contrary assertions and those of a family member

he has provided face a high hurdle.

The Court need not decide if Petitioner has cleared that hurdle, however, because any such

promise provided by counsel was clearly overcome by the information provided to Petitioner in

his plea agreement, application to plead guilty, and plea hearing. Both the plea agreement and

application to plead guilty contain explicit statements informing Petitioner that he faced up to forty

years’ imprisonment, and that his ultimate sentence would be in this Court’s sole discretion subject

to areview of the advisory guidelines. This Court also explicitly discussed the issue with Petitioner

during his plea colloquy. The Court made certain Petitioner was aware that he faced up to forty

years’ imprisonment, that this Court alone would decide his ultimate sentence after consulting the

advisory guidelines and ensured that Petitioner’s decision to plead guilty was not influenced by

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any erroneous sentencing prediction or promise. It is thus abundantly clear that any

misunderstanding provided by counsel was more than dispelled by this Court’s thorough plea

colloquy, and Petitioner’s plea-related ineffective assistance claim is thus utterly without merit,

and is denied as such. Bui, 795 F.3d at 367.

In his final claim, Petitioner asserts that he asked his counsel to file an appeal on his behalf

after sentencing, and counsel failed to do so. In order to show that counsel was ineffective in

failing to file an appeal, a petitioner must show either that counsel was ineffective in failing to

confer with him regarding an appeal or that he expressly indicated his desire to appeal and that

counsel refused or failed to file an appeal on his behalf. See, e.g., Garza v. Idaho, 139 8S. Ct. 738,

746 (2019). A petitioner will therefore establish an entitlement to relief where the petitioner can

show “that, but for counsel’s deficient failure to consult with him about an appeal [or to file an

appeal after being directed to do so, the petitioner] would have timely appealed.” Jd at 747

(quoting Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000)). Where such a showing is made, a court

must presume prejudice in the form of the lost appeal, even where there is an otherwise applicable

plea waiver which would apply and prevent a direct appeal from proceeding on the merits. Garza,

139 S. Ct. at 747. A petitioner need not show that the appellate claims he wishes to raise would

not have been barred by his appellate waiver, nor must he show that his desired claims are of any

merit. The Supreme Court has clearly held that the loss of desired appellate proceedings is

prejudice enough to warrant relief in the form of a nunc pro tunc appeal. Id.; see also Solis v.

United States, 252 F.3d 289, 295 (3d Cir. 2001) (proper relief for a lost appeal ineffective

assistance of counsel claim is to provide the petitioner with “the opportunity nun pro func to brief

his direct appeal in full”).

As Petitioner contends that he told counsel to file an appeal and counsel did not do so, he

has stated a prima facie claim for relief under Garza, notwithstanding his appellate waiver or the

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lack of merit of his potential appellate claims. Thus, if this Court were to find Petitioner credible,

he would be entitled to a nunc pro tunc appeal. The Court must therefore hold a hearing to decide

Petitioner’s appeal related claim.* As a hearing will be held on this issue, the Court is required by

Rule 8(c) of the Rules Governing § 2255 Proceedings to appoint counsel for Petitioner if he

“qualifies to have counsel appointed under 18 U.S.C. § 3006A.” To qualify for the appointment

of counsel for such purposes in light of this Court’s finding that Petitioner’s appeal claim is

sufficient to warrant an evidentiary hearing, Petitioner must show that he is indigent. Reese v.

Fulcomer, 946 F.2d 247, 263-64 (3d Cir. 1991), superseded on other grounds by statute, 28 U.S.C.

§ 2254(d). Thus, to the extent Petitioner wishes to have counsel appointed to represent him at the

hearing, he should provide the Court with proof of his indigence within thirty days.

Finally, to the extent a hearing is ordered in this matter, the Government requests an order

finding that Petitioner has waived the attorney-client privilege as to his ineffective assistance

claims and requiring that counsel make herself available to the Government prior to any hearing if

counsel’s testimony is required at the hearing.

The Third Circuit has held that a party implicitly waives the attorney-client privilege when

the party places the legal representation it received directly at issue. See Emmanouil v. Roggio,

499 F. App’x 195, 201 (3d Cir. 2012); US. Fire Ins. Co. v. Asbestospray, Inc., 182 F.3d 201, 212

(3d Cir, 1999); Livingstone v. N. Belle Vernon Borough, 91 F.3d 515, 537 (3d Cir. 1996); Rhone-

3 Tt may well be the case, as the Government maintains in its answer in this matter, that Petitioner's

success on this claim and any subsequent appeal may ultimately be to his detriment as it may

subject him to further charges or a harsher sentence to the extent that Petitioner ultimately breaches

the terms of his plea agreement in pursuing an appeal. That assertion on the Government’s part,

however, is immaterial to the showing required of Petitioner under Garza and thus is irrelevant to

the presumption of prejudice that Garza requires this Court to apply should Petitioner convince

the Court that he explicitly requested that an appeal be filed and that counsel ignored his request.

The Court is thus required to hold a hearing notwithstanding the Government’s belief that

Petitioner’s potential success on this claim could have unintended negative consequences for him.

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Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994); see also Ragbir y. United

States, No. 17-1256, 2018 WL 1871460, at *2-3 (D.N.J. Apr. 19, 2018). Where a habeas petitioner

“claims that he received ineffective assistance of counsel, he puts communications between

himself and his attorney directly in issue, and thus by implication waives the attorney-client

privilege with respect to those communications.” Ragbir, 2018 WL 1871460, at *2 (quoting

United States v. Pinson, 584 F.3d 972, 977-78 (10th Cir. 2009)). This waiver, however, is not

unlimited in scope — the petitioner claiming ineffective assistance impliedly waives attorney-client

privilege only “with respect to communications with his attorney necessary to prove or disprove

his claim[s].” Pinson, 584 F.3d at 978; see also Bittaker v. Woodford, 331 F.3d 715, 720 (9th Cir.

2003) (courts “must impose a waiver no broader than needed to ensure fairness of the proceedings

before it”); Ragbir, 2018 WL 1871460, at *2 Gmplied waiver limited “to attorney-client

communications that are necessary for the resolution of the claims at hand”). As Petitioner has

placed his counsel’s actions and discussions as to an appeal directly in issue, the Court finds that

he has waived his attorney-client privilege as to any communications with counsel necessary to

prove or disprove his claim[s]”. Pinson, 584 F.3d at 978. The Government’s request for a finding

of waiver of privilege and for permission to interview Petitioner’s prior counsel shall therefore be

granted.*

* Although this Court will grant the Government’s request for a finding of waiver of privilege and

for permission to interview Petitioner’s prior attorney, because “‘a witness may of his own free will

refuse to be interviewed by either the [Government] or [Petitioner],” this Court will not compel

Petitioner’s prior counsel to speak with the Government. See United States v. Bryant, 655 F.3d

232, 239 (3d Cir. 2011). Petitioner’s former attorney is free to speak with the Government prior

to the hearing in this matter if prior counsel so chooses as Petitioner has waived attorney-client

privilege as discussed above. In the event that counsel for whatever reason may refuse to speak

with the Government, the Government is free to request an order compelling counsel’s attendance

at the hearing in this matter.

WG

E. Certificate Of Appealability

Pursuant to 28 U.S.C. § 2253(c), the petitioner in a § 2255 proceeding may not appeal from

the final order in that proceeding unless he makes “a substantial showing of the denial of a

constitutional right.” “A petitioner satisfies this standard by demonstrating that jurists of reason

could disagree with the district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-

El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Because all of Petitioner’s non-appeal related claims are time barred, not cognizable under § 2255

or meritless for the reasons expressed throughout this Opinion, Petitioner has failed to make a

substantial showing of a denial of a constitutional right as to those claims. This Court therefore

denies Petitioner a certificate of appealability as to Petitioner’s non-appeal related claims.

IV. CONCLUSION

For the reasons set forth above, Petitioner’s non-appeal related claims are DENIED,

Petitioner is DENIED a certificate of appealability as to his non-appeal related claims, Petitioner

is GRANTED a hearing as to his appeal related ineffective assistance claim and as to the

timeliness of that claim, and the Government’s request for a finding of waiver and for permission

to interview Petitioner’s prior counsel is GRANTED. An appropriate order follows.

s/ Michael A. Shipp

MICHAEL A. SHIPP

UNITED STATES DISTRICT JUDGE

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