Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

THOMAS KELLY BALLARD, III,

Movant,

v. Case No. 1:22-cv-01226-STA-jay

UNITED STATES OF AMERICA,

Respondent.

ORDER DENYING RELIEF UNDER 28 U.S.C. § 2255,

DENYING CERTIFICATE OF APPEALABILITY,

AND DENYING LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

Thomas Kelly Ballard filed a pro se 28 U.S.C. § 2255 Motion on October 17, 2022. (ECF

No. 1.) The Government was directed to respond on October 31, 2022. (ECF No. 4.) Ballard filed

a memorandum of law in support of his § 2255 Motion on November 7, 2022. (ECF No. 5.) On

January 23, 2023, the Court granted the Government’s motion for extension of time to file its

response. (ECF No. 11.) The Court extended the Government’s response time again on February

21, 2023, and required the Government to file its response by March 7, 2023. (ECF No. 14.)

On February 24, 2023, the Court granted the Government’s Motion for an Order

Compelling an Affidavit and Production of Case File Materials from Counsel. (ECF No. 16.) The

Court ordered David Camp, an attorney who communicated with Ballard in reference to a motion

to set aside his guilty plea, to provide an affidavit discussing in appropriate detail all

communications, notes, or documents — whether written or oral — relevant to his consultation

with Ballard about the guilty plea and any related allegations of ineffective assistance of counsel

in United States v. Ballard, No. 1:19-cr-10042-STA. Attorney Camp submitted his affidavit on

March 3, 2023. (ECF 17.)

Thereafter, the Government filed its answer in opposition to the motion (ECF No. 18) and

also filed the affidavit and supplemental affidavit of Leslie Ballin, Ballard’s attorney during the

criminal proceedings. (ECF Nos. 18-2, 18-3.) Additionally, the Government filed a proposed

exhibit list that would have been used at trial (ECF No. 18-1), an unsigned plea agreement (ECF

No. 18-4), the affidavit of Andrew Pennebaker, trial attorney in the fraud section of the criminal

division of the United States Department of Justice who was assigned to the prosecution of Ballard

(ECF No. 18-5), and a transcript of Ballard’s October 19, 2021 sentencing. (ECF No. 18-6.)

Ballard requested additional time to reply to the Government’s answer (ECF No. 19), and

he also filed a motion to compel production of likely privileged information concerning Attorney

Ballin’s communications with the Tennessee Board of Professional Responsibility and to obtain a

copy of Attorney Camp’s sealed affidavit. (ECF No. 20.) The Court granted the portion of the

motion seeking a copy of Attorney Camp’s affidavit but denied the remaining portion because

Ballard acknowledged that Attorney Ballin was attempting to provide him with his case file which

included an email wherein Attorney Ballin conveyed the substance of his communication with the

Board. (ECF No. 26.)

After Ballard obtained counsel for this proceeding, the Court granted his motion to amend

his original 28 U.S.C. § 2255. (ECF No. 34.) The amended motion was filed on October 31, 2024.

(ECF No. 35.) The Government filed its amended answer on December 9, 2024 (ECF No. 39), and

Ballard filed a reply on January 13, 2025. (ECF No. 42.) The matter has now been fully briefed,

and the Court finds that the motion should be DENIED.

2

Background

On April 15, 2019, a grand jury in the Western District of Tennessee issued an indictment

charging Ballard with one count of maintaining drug-involved premises in violation of 21 U.S.C.

§ 856, sixteen counts of unlawfully distributing a Schedule II controlled substance in violation of

21 U.S.C. § 841, and one count of unlawfully distributing a Schedule II controlled substance

resulting in serious bodily injury or death in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).

Ballard was initially represented by attorney Stephen Elliott; he retained attorney Leslie Ballin as

lead counsel soon thereafter.1 (ECF No. 31.)

The Government made Ballard a written plea offer on July 6, 2020. That offer was not

accepted. After granting two requests by Ballard to continue the trial, the Court set trial for June

28, 2021, with a final pretrial conference on May 28, 2021, and a change-of-plea deadline of June

14, 2021.

On June 8, 2021, Attorney Ballin asked the Government if it would revive the plea offer

from July 2020. The terms of that plea offer and agreement included the following appellate

waiver:

If [Defendant] had proceeded to trial and had been convicted, he would have had

the right to appeal the conviction. He understands that by pleading guilty, he gives

up the right to appeal the conviction. Based on concessions made in this plea

agreement by the United States, he also hereby waives his rights to appeal his

sentence, unless the sentence exceeds the maximum permitted by statute.

Except with respect to claims of ineffective assistance of counsel or prosecutorial

misconduct, Defendant waives his right to challenge the sufficiency or the

voluntariness of his guilty plea on direct appeal or in any collateral attack….

(July 2020 Draft Plea Ag., ¶¶ 2(b)-(c), ECF No. 18-4.)

1 Attorney Ballin represented Ballard beginning in May 2019 through the remainder of his criminal

case. This included his guilty plea and sentencing.

3

The Government’s July 2020 plea offer also included the following Rule 410 waiver:

Defendant further expressly waives his rights pursuant to Rule 410(a) of the Federal

Rules of Evidence upon affixing his signature to this plea agreement. Defendant

understands and agrees that in the event Defendant violates the plea agreement,

Defendant does not enter his plea of guilty, or his guilty plea is for any reason

withdrawn, the following shall be admissible for all purposes against Defendant in

any and all criminal matters:

i. any statements made by Defendant to law enforcement agents or an attorney for

the prosecuting authority during plea discussions;

ii. any statements made by Defendant during any court proceeding involving

Defendant’s plea of guilty, including the “agreed facts” set forth herein;

iii. any other factual bases or summaries signed by Defendant; and

iv. any leads from such statements, factual bases, or summaries….

(Id. at ¶ 4(c).)2

On June 10, 2021, the Government responded that it could not revive the original plea offer

but would consider making a modified offer involving a Rule 11(c)(1)(C)3 plea to a 20-year

sentence, the mandatory minimum if Ballard pled to Count 18 in the indictment.

On June 17, 2021, the Court ruled in the Government’s favor on a motion to exclude a

portion of the anticipated testimony of Ballard’s expert.

On June 21, 2021, counsel for the Government received a call from Attorney Ballin

inquiring about a potential resolution to the case. Initially, he again asked for a revival of the July

2020 offer but later indicated that Ballard would also consider the Rule 11(c)(1)(C) offer. After

conferring with his client, Attorney Ballin explained that Ballard was willing to go forward on the

2 The parties dispute whether the appeal waiver language accepted by Ballard applied only to

sentencing issues. The Court has assumed without deciding that nothing contained in the signed

plea agreement prevented Ballard from appealing the guilty plea or conviction itself.

3 Rule 11(c)(1)(C) allows the United States “to agree that a specific sentence or sentencing range

is the appropriate disposition of the case.” Such a plea agreement requires the Court’s approval

pursuant to Fed. R. Crim. P. 11(c)(3)(A). See Hitchcock v. United States, 2025 WL 3231620, at

*1 (E.D. Tenn. Nov. 19, 2025).

4

20-year plea on two conditions: Ballard’s fine and forfeiture must be limited, and Ballard wanted

to remain out of custody pending sentencing. Ultimately, the parties arrived at specific provisions

of the new agreement: (1) the count of conviction and accompanying 20-year sentence, with a

corresponding factual basis; (2) the amounts of the forfeiture and fine; and (3) Ballard’s remaining

on bond after entering his plea.

Counsel for the Government then located a plea agreement under Rule 11(c)(1)(C) that had

been used in the Western District of Tennessee and modified only the portions of the agreement

relating to the forfeiture amount, the factual basis, and maintaining Ballard’s bond conditions

pending sentencing. The Government did not seek or receive approval to modify its July 2020

offer as it pertained to the appellate waiver or the Rule 410 waiver.4 (Pennebaker Aff., ECF No.

18-5.)

The signed plea agreement contained the following language:

13. The Defendant is aware that 18 U.S.C. Section 3742 affords him the right to

appeal the sentence imposed in this case. Acknowledging this, in exchange for the

undertakings made by the United States in this plea agreement, the Defendant

hereby waives all rights conferred by 18 U.S.C. ' 3742 to appeal any sentence

imposed or to appeal the manner in which the sentence was imposed, unless the

sentence exceeds the maximum permitted by statute or is the result of an upward

departure from the guideline range that the court establishes at sentencing. The

Defendant further understands that nothing in this agreement shall affect the

government’s right and/or duty to appeal as set forth in 18 U.S.C. Section 3742(b).

However, if the United States appeals the Defendant’s sentence pursuant to 18

U.S.C. Section 3742(b), the Defendant shall be released from the above waiver of

appellate rights. By signing this agreement, the Defendant acknowledges that he

has discussed the appeal waiver set forth in this agreement with his attorney. The

Defendant further agrees, together with the United States, to request that the district

court enter a specific finding that the Defendant’s waiver of his right to appeal the

sentence to be imposed in this case was knowing and voluntary.

14. The Defendant understands that Title 28, United States Code, Section 2255

provides an additional method by which to challenge the sentence imposed by the

4 See supra note 2.

5

Court. Acknowledging this, the Defendant knowingly and voluntarily waives his

right. The waiver in this paragraph does not apply to claims relating to prosecutorial

misconduct or ineffective assistance of counsel.

(Plea Agr., ECF No. 101, 1:19-cr-10042-STA.)

Ballard signed the plea agreement on June 21, 2021, and entered a plea of guilty to Count

18 of the indictment on June 23, 2021, acknowledging that he unlawfully distributed a Schedule

II controlled substance (hydrocodone) resulting in the death of a patient (referred to in the

indictment as “A.L.”). In exchange for Ballard’s guilty plea, the Government agreed to dismiss the

remaining seventeen counts of the Indictment. Pursuant to Rule 11(c)(1)(C), the plea agreement

recommended a sentence of 240 months imprisonment, which is the mandatory minimum sentence

for the subject offense. Ballard was allowed to remain out on bond as agreed to.

At the change of plea hearing, Ballard was placed under oath and cautioned that he could

be prosecuted for perjury or for giving a false statement under oath if he was not “honest and

truthful.” (Tr. p. 7, ECF No. 108, 1:19-cr-10042-STA.) Ballard replied that he understood. (Id.)

He described his education as “High school, college, medical school, three years residency after

medical school.” (Id. at p. 8.) In response to the question by the Court, “Are you satisfied, and do

you believe that you do fully understand everything that you’re doing here today?” Ballard

answered, “Yes, sir.” (Id. at pp. 10-11.) The Court followed up by asking:

Is there anything else, Dr. Ballard, going on in your life, than obviously what we’re

dealing with here today, that you think would prevent you, or have any impact on

your ability to understand what you’re doing in court today and the consequences

of what you’re doing in court today?

(Id. at p. 11.) Ballard responded, “No, sir.” (Id.)

Next, Ballard was asked about his assessment of Attorney Ballin’s representation:

THE COURT: Have you had an opportunity to discuss your case fully and

completely with your attorney, Mr. Ballin?

6

THE DEFENDANT: Yes, sir.

THE COURT: Has Mr. Ballin been able to explain to your satisfaction what the

facts of the case are, what the law would be that applies to your case, and what your

options are about whether to proceed to trial or enter a guilty plea?

THE DEFENDANT: Yes, sir.

THE COURT: Are you satisfied with Mr. Ballin’s representation of you in this

case?

THE DEFENDANT: Yes, sir.

THE COURT: Do you think he’s done a good job?

THE DEFENDANT: Yes, sir.

(Id. at p. 12.) After advising Ballard of his rights if he went to trial and the sentencing procedure

and process, the Court engaged in the following colloquy with Ballard.

THE COURT: Did you have an opportunity to review the contents of the plea

agreement with Mr. Ballin fully and completely before you signed it?

THE DEFENDANT: Yes, sir.

THE COURT: Are you satisfied that you understood everything that’s in the plea

agreement, and that you did so before you signed it?

THE DEFENDANT: Yes, sir.

(Id. at pp. 20-21.)

Ballard acknowledged that, during the change of plea colloquy, the Government accurately

detailed the appeal and collateral attack waiver as contained in the plea agreement. (Id. at pp.

27B28). The Government explained:

The defendant is aware that 18, U.S.C., Section 3742, affords him the right to

appeal the sentence imposed in this case.

Acknowledging this, in exchange for the undertakings made by the United States

in this plea agreement, the defendant hereby waives all rights conferred by 18,

7

U.S.C., Section 3742 to appeal any sentence imposed, or to appeal the manner in

which the sentence was imposed, unless the sentence exceeds the maximum

permitted by statute, or is the result of an upward departure from the guideline range

that the Court establishes at sentencing.

…

By signing this agreement the defendant acknowledges that he has discussed the

appeal waiver set forth in this agreement with his attorney.

The defendant further agrees, together with the United States, to request that the

Court enter a specific finding that the defendant’s waiver of his right to appeal the

sentence to be imposed in this case was knowing and voluntary.

The defendant understands that Title 28, United States Code, Section 2255,

provides an additional method by which to challenge the sentence imposed by the

Court.

Acknowledging this, the defendant knowingly and voluntarily waives his right. The

waiver in this paragraph does not apply to claims relating to prosecutorial

misconduct or ineffective assistance of counsel.

(Id.) The Government also specified that:

By signing this agreement, the defendant affirms that he is satisfied with his

lawyer’s counsel and representation, and hereby freely and voluntarily enters into

this plea agreement.

(Id. at pp. 28-29.) After the Government’s recitation of the provisions of the plea agreement and

before affirming that the recitation was the same as his understanding of that agreement, Ballard

was granted permission to confer with his attorney. (Id. at p 29.) Ballard then affirmed that the

“terms and conditions” of the plea agreement just reviewed by the Government were those he

understood to be in the agreement before he signed it. (Id. at p 30.)

Thereupon, the Court also reviewed the “terms and conditions” of the plea agreement with

Ballard. Ballard further indicated that he agreed that the factual basis was accurate and that his

plea was knowing and voluntary.

THE COURT: So you understand that you’re admitting under oath that you

committed the offense that’s set forth in paragraph four of the plea agreement. Is

that correct?

8

THE DEFENDANT: Yes, sir.

THE COURT: And are you doing that freely and voluntarily?

THE DEFENDANT: Yes, sir.

THE COURT: Has anyone pressured you in any way, promised you anything, or

done anything at all to try to get you to admit to the facts against your will?

THE DEFENDANT: No, sir.

(Id. at p. 32.)

The Court then discussed Ballard’s appeal waiver with him.

Paragraph 13 states that you are voluntarily waiving or giving up your right to file

both a direct appeal and a collateral attack.

Normally when someone is sentenced in Federal court, if they’re unhappy with the

sentence they receive, then they have the right to appeal to a higher Court and ask

that higher Court to review what’s happened here. In paragraph 13 you are what we

call waiving or giving up that right.

Basically in your case what that’s going to mean is if I accept the plea agreement,

you're going to know that the period of incarceration will be 240 months. You’re

going to know that if a fine is imposed it would not exceed $10,500. And you’re

going to know that there will be a period of what’s called supervised release, which

you would serve after you serve any period of incarceration. I can’t tell you exactly

what period that would be and what conditions would be imposed.

But bottom line, you’re giving up or waiving your right to file any type of appeal,

except under the very limited circumstances that are set forth in paragraph 13 of the

plea agreement.

Is that the way you understood it?

THE DEFENDANT: Yes, sir.

THE COURT: And did you intend to give up and waive your right to file a direct

appeal?

THE DEFENDANT: Yes, sir.

9

THE COURT: Paragraph 14 is somewhat similar. It’s what we call a collateral

attack under Section 2255.

Under that section a person who is incarcerated can ask the Court, they can file

what’s called a petition under Section 2255, basically stating I’m being held against

my will or that I should not be incarcerated, or the sentence that is imposed is

incorrect for some reason.

But again, you're waiving that right. You're waiving and giving up your right to file

a collateral attack under Section 2255.

Is that what you intended to do?

THE DEFENDANT: Yes, sir.

(Id. at pp. 36-38.)

The Court then stated:

The Court further finds that Dr. Ballard is represented by competent counsel in Mr.

Ballin. And that Dr. Ballard has told the Court that he is, in fact, satisfied with Mr.

Ballin’s representation.

The Court further finds that Dr. Ballard has knowingly, intentionally and

voluntarily waived his right to file a direct appeal, as set forth in paragraph 13 of

the plea agreement, as well as his right to file a collateral attack under Section 2255,

as set forth in paragraph 14 of the plea agreement.

(Id. at p. 41.)

The Government does not dispute that, before he was set to be sentenced, Ballard informed

Attorney Ballin that he wanted to move to withdraw his guilty plea. After conferring with the

Tennessee Board of Professional Responsibility, Attorney Ballin believed that he could not

ethically file such a motion and encouraged Ballard to seek the advice of separate counsel. (Ballin

Aff. ¶ 5, ECF No. 18-3.) Ballard consulted with Attorney David Camp who advised Ballard not to

move to withdraw his plea. (Mot., p. 38, ECF No. 1.) This led Ballard to the decision that he “had

no choice but to proceed with sentencing.” (Id.)

10

On October 18, 2021, the day before he was set to be sentenced, Ballard emailed Attorney

Ballin a proposed “sentencing hearing statement,” asking the Court to allow him to withdraw from

the plea agreement without penalty and go to trial. (Id. at p. 52; October 18, 2021 email from

Ballard to Ballin, ECF No. 1-1.) However, at the sentencing hearing on October 19, 2021, the

Court asked Ballard if he wished to make any statement, and Ballard declined (“No, sir, I don’t

want to make any statements.”) (Sent. TR., pp. 11-12, ECF No. 18-6.) The Court then accepted

the recommendation of the parties and sentenced Ballard to 240 months imprisonment, followed

by three years supervised release. The Court also imposed a $10,000 fine and ordered forfeiture in

the amount of $10,500, consistent with the agreed forfeiture provision of the plea agreement. In

consideration of Ballard’s plea, the Government moved to dismiss the remaining counts in the

indictment. Ballard was allowed to self-report to his designated place of incarceration as agreed

by the parties.

On October 17, 2022, Ballard filed his pro se motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255, and then later was allowed to file an amended motion.

Ballard raises three grounds for ' 2255 relief: (1) Counsel was ineffective for failing to

meaningfully consult with Ballard regarding an appeal; (2) Counsel was ineffective for failing to

move to withdraw Ballard’s guilty plea; (3) following the Supreme Court’s decision in Ruan v.

United States, there is an insufficient factual basis for Ballard’s guilty plea. Ballard asks the Court

to vacate the sentence imposed and resentence him in “in order to start the time for appeal running

again.” Rosinski v. United States, 459 F.2d 59 (6th Cir. 1972).

11

Analysis

Ballard asks the Court to schedule this matter for an evidentiary hearing on his claims of

ineffective assistance of counsel pursuant to 28 U.S.C. ' 2255(b). The Government contends that

Ballard’s motion can be decided on the undisputed facts in the record.

A Court should hold an evidentiary hearing on a § 2255 motion “[u]nless the motion and

the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28

U.S.C. § 2255(b). That is, “no hearing is required if the petitioner’s allegations ‘cannot be accepted

as true because they are contradicted by the record, inherently incredible, or conclusions rather

than statements of fact.’” Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (quoting

Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)); see also Napier v. United States, 1993

WL 406795, at *2 (6th Cir. Oct. 8, 1993) (“To be entitled to a hearing, the prisoner must set forth

detailed factual allegations which, if true, would entitle him to relief under § 2255.” (citations

omitted)). A Court reviewing a § 2255 motion is not required to conduct an evidentiary hearing

when a movant’s “self-serving statements in an affidavit [] are contradicted by a credible version

of events in an affidavit from his trial counsel.” United States v. Walls, 2008 WL 927926, at *12

(E.D. Ky. Apr. 4, 2008); see also Cummings v. United States, 84 F. App’x 603, 2003 WL 23140049

(6th Cir. 2003) (affirming denial of § 2255 motion when district court credited trial counsel’s

affidavit stating that defendant had not asked him to file appeal); Garner v. United States, 2006

WL 2585066 (E.D. Tenn. 2006) (affirming denial of § 2255 motion, crediting counsel’s affidavit

that defendant did not request appeal over contrary statement of defendant that he requested

appeal). The Court finds that an evidentiary hearing is not warranted in the present case because

the undisputed facts in the record show conclusively that Ballard’s claims are without merit.

12

Legal Standard

“A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: (1) an error of

constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact

or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States,

471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted). The movant has the burden

of proving that he is entitled to relief by a preponderance of the evidence. Pough v. United States,

442 F.3d 959, 964 (6th Cir. 2006).

In his motion, Ballard claims that Attorney Ballin provided ineffective assistance of

counsel. A claim that an attorney’s ineffective assistance has deprived a criminal defendant of his

Sixth Amendment right to counsel alleges an error of constitutional magnitude cognizable in a §

2255 proceeding. See id. Such a claim is controlled by the standards stated in Strickland v.

Washington, 466 U.S. 668 (1984). Id. at 966. To succeed on an ineffective-assistance claim, a

movant must demonstrate two elements: (1) “that counsel’s performance was deficient”; and (2)

“that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. “The

benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” Id. at 686.

To establish deficient performance, a movant “must show that counsel’s representation fell

below an objective standard of reasonableness.” Id. at 688. A Court considering a claim of

ineffective assistance must apply “a strong presumption” that the attorney’s representation was

“within the wide range of reasonable professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged action might be considered sound

trial strategy.” Id. at 689 (internal quotation marks omitted).

13

In Bobby v. Van Hook, the Supreme Court reiterated that an objective standard of

reasonableness is required:

No particular set of detailed rules for counsel’s conduct can satisfactorily take

account of the variety of circumstances faced by defense counsel or the range of

legitimate decisions regarding how best to represent a criminal defendant.

Restatements of professional standards, we have recognized, can be useful as

“guides” to what reasonableness entails, but only to the extent they describe the

professional norms prevailing when the representation took place.

Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (citations omitted).

To demonstrate prejudice, a movant must establish “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. “It is not enough ‘to show that the errors had some conceivable

effect on the outcome of the proceeding.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting

Strickland, 466 U.S. at 693) (citations omitted). Instead, “[c]ounsel’s errors must be ‘so serious

as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Id. (quoting Strickland,

466 U.S. at 687).

There is a “strong presumption that defense counsel’s decisions are guided by sound trial

strategy,” but “[t]he trial strategy itself must be objectively reasonable.” Miller v. Francis, 269

F.3d 609, 616 (6th Cir. 2001). “A strategic decision cannot be the basis for a claim of ineffective

assistance unless counsel’s decision is shown to be so ill-chosen that it permeates the entire trial

with obvious unfairness.” Id. at 615-16. “[S]trategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at

690.

14

Claims

Ballard’s first two claims are (1) Counsel (Attorney Ballin) was ineffective for failing to

meaningfully consult with him regarding an appeal and (2) Counsel (Attorney Ballin) was

ineffective for failing to move to withdraw his guilty plea. The only ground for an appeal that

Ballard posits is the validity of his guilty plea. Because these two claims are inextricably

intertwined, the Court will consider them together – looking first at the events surrounding

Ballard’s guilty plea and his indication to Attorney Ballin that he wanted to withdraw his plea.

The parties agree that, prior to sentencing, Ballard requested that Attorney Ballin file a

motion to withdraw his guilty plea and 11(c)(1)(C) plea agreement under Rule 11(d)(2)(B) of the

Federal Rules of Criminal Procedure. According to Ballard, he wanted to withdraw his guilty plea

because he was innocent and was “reluctan[t] to persist in a guilty plea that was based on untruths.”

Attorney Ballin told Ballard that he would consult with an ethics official and sought a continuance

of the sentencing hearing so that he would have time to do so. Ultimately, Attorney Ballin told

Ballard that, if he chose to pursue the motion to withdraw his guilty plea, he would withdraw his

representation. Attorney Ballin advised Ballard to consult another attorney. Ballard did so and was

advised by the second attorney, David Camp, that he should not attempt to withdraw his guilty

plea. Although the day before sentencing, Ballard emailed Attorney Ballin a “sentencing”

statement asking the Court not to accept the plea agreement so that he could withdraw from the

agreement without penalty and go to trial, Ballard declined to make a statement at the sentencing

hearing.

In his motion, Ballard correctly notes that an attorney’s failure to file a notice of appeal at

the defendant’s request is per se ineffective assistance of counsel. Roe v. Flores-Ortega, 528 U.S.

470, 477 (2000). In cases in which the defendant neither asks for an appeal nor instructs an appeal

15

not be taken, counsel has a constitutional obligation to consult with his client “when there is reason

to think either (1) that a rational defendant would want to appeal (for example, because there are

nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to

counsel that he was interested in appealing.” Id. at 480. “We expect that courts evaluating the

reasonableness of counsel’s performance using the inquiry we have described will find, in the vast

majority of cases, that counsel had a duty to consult with the defendant about an appeal.” Id. at

481. The Flores-Ortega Court defined “consult” as “advising the defendant about the advantages

and disadvantages of taking an appeal and making a reasonable effort to discover the defendant’s

wishes.” Id. at 471.

Ballard argues that the following facts show that Attorney Ballin had a duty to consult with

him regarding a direct appeal: (1) although his plea agreement contained a waiver of appeal under

18 U.S.C. ' 3742 which precluded an appeal from the sentence imposed, nothing in the plea

agreement precluded an appeal from the underlying conviction or guilty plea itself; (2) Ballard

requested counsel to file a motion to withdraw his guilty plea prior to sentencing; and (3) Attorney

Ballin did not consult with Ballard regarding an appeal at any time after sentencing. According to

Ballard, these undisputed facts show that he demonstrated an interest in appealing his conviction,

thus triggering counsel’s constitutional obligation to consult with him and “mak[e] a reasonable

effort to discover [Ballard=s] wishes.” Id. at 471. He reasons that the failure to have any meaningful

consultation with him post-plea and sentencing constitutes deficient performance under Strickland.

Ballard acknowledges that, when a defendant enters into an 11(c)(1)(C) plea that stipulates

a specific sentence, it is unlikely to be found that a rational defendant would want to appeal when

he received the bargained-for sentence as in this case. However, he claims that he “reasonably

16

demonstrated” his dissatisfaction with the 240-month sentence by requesting that Attorney Ballin

file a motion to withdraw his guilty plea and plea agreement.

The fallacy with Ballard’s argument is that, although he did discuss withdrawing his guilty

plea with Attorney Ballin, he did not pursue that avenue after being advised by Attorney Ballin

that he would have an ethical obligation to withdraw as counsel of record if Ballard insisted on

doing on. Ballard was also advised by an outside attorney, David Camp, that he should not pursue

filing a motion to withdraw his plea. Even though Ballard contemplated submitting a statement to

the Court at sentencing stating that he wanted to withdraw his plea, he did not do so and

affirmatively stated to the Court that he did not wish to make a statement. Under these

circumstances, a reasonable attorney would not have thought he had a duty to consult with his

client about filing an appeal.

In support of his argument, Ballard relies in part on D-8 v. United States, 2019 WL

2004098, at *4 (E.D. Mich. May 7, 2019), which determined that “Petitioner reasonably

demonstrated an interest in pursuing an appeal that obligated counsel to contact Petitioner and

obtain his decision rather than simply ignoring the situation and avoiding contact with Petitioner

and then resting on Petitioner’s silence or failure to request an appeal.” In that case, as Ballard

correctly states, the Court found that the defendant’s expressions of unhappiness with his sentence

coupled with the defendant’s father’s communication to the attorney that the defendant wanted to

appeal were sufficient to demonstrate interest in appealing. 5 Those facts are not present in this

5 Athough the Court pointed out that “Flores-Ortega and Garza [v. Idaho, 568 U.S. 232 (2019)]’s

requirement that defense counsel potentially jeopardize their client’s interests by filing an appeal

they believe has no merit is counterintuitive. If the defendant breaches the plea agreement by filing

the appeal, the value of the plea agreement could be lost and the defendant may face a harsher

sentence than the sentence negotiated in the original plea agreement,” D-8, 2019 WL 2004098, at

17

case. Although Ballard discussed withdrawing his guilty plea, he never made any affirmative

statements to Attorney Ballin instructing him to file such a motion. Nor did he indicate to the Court

that he wished to do so. For that matter, in Ballard’s Declaration in support of his amended motion,

he does not assert that he either told Attorney Ballin to file a motion to withdraw his guilty plea or

that he had ever indicated to Ballin a desire to appeal his conviction. (Ballard Decl., ECF No. 35-

1.) Instead, Ballard explains why he pled guilty (e.g., he did not believe that Attorney Ballin was

prepared to go to trial, and he feared that his testimony alone would not convince jurors that his

actions were “for a legitimate medical purpose in light of the Government’s expert’s testimony”)

and why he believes that the factual basis set out in the plea agreement does not actually allege

criminal activity on his part. (Id. at pp. 1-2.)

The Flores-Ortega Court provided guidance on what factors the Court should consider

when determining whether a rational defendant would want to appeal or if a particular defendant

reasonably demonstrated an interest in appealing:

Although not determinative, a highly relevant factor in this inquiry will be whether

the conviction follows a trial or a guilty plea, both because a guilty plea reduces the

scope of potentially appealable issues and because such a plea may indicate that the

defendant seeks an end to judicial proceedings. Even in cases when the defendant

pleads guilty, the court must consider such factors as whether the defendant

received the sentence bargained for as part of the plea and whether the plea

expressly reserved or waived some or all appeal rights.

528 U.S. at 480. These factors weigh against Ballard’s claim that his counsel was constitutionally

ineffective for not consulting with him about an appeal.

First, Ballard pled guilty instead of proceeding to trial. Second, Ballard received the

sentence he bargained for. Third, Ballard waived all rights to appeal his sentence except the right

*4, ultimately, the Court concluded that “[r]egardless of the tension created by Flores-Ortega and

Garza, counsel is required to file the appeal if the defendant requests an appeal.” Id. at *5.

18

to appeal the imposition of any sentence inconsistent with the provisions of the plea agreement.

Based on these factors, Ballard has failed to show that there was reason for his counsel to think

that he would have wanted to appeal or that a rational defendant would want to appeal. Therefore,

Attorney Ballin did not provide constitutionally deficient performance under the first prong of

Strickland, and Ballard’s ineffective assistance of counsel claim based on his attorney’s failure to

consult with him about an appeal must be dismissed. See Wright v. United States, 320 F. App’x

421, 425 (6th Cir. 2009) (finding that “the district court properly dismissed Wright’s ineffective

assistance of counsel claim based on his counsel’s failure to consult with him about an appeal.”)

Additional evidence supporting the Court’s decision is the affidavit of Attorney Ballin in

which he states that Ballard did not ask him to file a direct appeal nor was there a “non-frivolous

basis for such a filing.” (Ballin Aff. p. 3, ECF No. 18-3.) Attorney Ballin attached to his affidavit

a statement signed by Ballard two days prior to his plea hearing in which he acknowledged that he

“faced life and forfeiture into the millions,” and therefore did “NOT want to go to trial.” (Id. at p.

9.) Ballard has pointed to no facts in the record that would suggest that a rational defendant would

have wanted to appeal.

Ballard’s discussions with Attorney Ballin prior to his sentencing about possibly moving

to withdraw his guilty plea did not trigger the duty to consult about filing a notice of appeal. That

is, Ballard has failed to show under Roe v. Flores-Ortega either that there were “nonfrivolous

grounds for appeal” or that he “reasonably demonstrated to counsel that he was interested in

appealing.” 528 U.S. at 480. Attorney Ballin’s alleged failure to consult Ballard about appealing

his conviction was not deficient performance because, under the circumstances as discussed above,

he had no duty to do so.

19

Furthermore, Ballard cannot demonstrate prejudice under Strickland on this claim because

he cannot show that he would have appealed but for the alleged failure to inform him of that right.

As noted by the Government, Ballard got the sentence he bargained for (which limited both his

time in prison and his financial responsibility), and he ultimately decided not to withdraw his plea,

which undermines his claim that Attorney Ballin should have known that he wanted to appeal.

Next, the Court must consider whether Attorney Ballin provided ineffective assistance of

counsel in failing to file a motion to withdraw Ballard’s guilty plea. It is undisputed that, before

he was set to be sentenced, Ballard informed Attorney Ballin that he wanted to withdraw his guilty

plea. After consulting with the Tennessee Board of Professional Responsibility, Attorney Ballin

determined that he could not ethically file such a motion “because [Ballard] could not provide a

fair and just reason for requesting the withdrawal, but rather, [Ballard] wanted [Ballin] to represent

to the Court that the statements in the plea agreement had not been true.” (Ballin Aff. p. 2, ECF

No. 183-3.) Attorney Ballin avers that he “could not in good faith make such an assertion to the

Court.” (Id.). Accordingly, Attorney Ballin advised Ballard to seek the advice of separate counsel.

Ballard did so and was advised by Attorney Camp as to the potential negative consequences of

moving to withdraw.

On October 18, 2021, the day before he was set to be sentenced, Ballard emailed Attorney

Ballin a “sentencing hearing statement” that Ballard was considering reading, essentially asking

the Court not to accept the plea agreement and allow him to withdraw from the agreement without

penalty and go to trial. However, Ballard chose not to make any statement at sentencing.

Attorney Ballin’s affidavit states that he “provided advice to Mr. Ballard about the positive

and negative aspects of both a guilty plea and a jury trial, listened to his priorities, and answered

his questions.” (Id. p. 5.) He “counseled him that, given the difficult facts, circumstances, and level

20

of exposure in his case,” Attorney Ballin believed that Ballard should accept the Government’s

offer. (Id.) However, Attorney Ballin was prepared to take the matter to trial. (Id.)

As for Ballard’s contention that Attorney Ballin “failed to hire any experts to vouch for his

prescribing practices,” the affidavit describes Attorney Ballin’s attempts to hire a medical expert,

but none of the individuals contacted by Attorney Ballin could provide favorable opinion

testimony. (Id.) The affidavit also describes the efforts made by Attorney Ballin to provide

discovery to Ballard. (Id. at pp. 5-6.) Attorney Ballin also made multiple attempts to discuss the

Pre-Sentence Report (“PSR”) with Ballard. (Id. at p. 6.) However, Ballard was not responsive to

those attempts according to various letters and emails submitted with Attorney Ballin’s affidavit.

(Id. at pp. 13-20.) Finally, Attorney Ballin describes the steps he took to prepare for trial. (Id. at

p. 6.)6

The parties agree that, pursuant to Rule 11 of the Federal Rules of Criminal Procedure, a

defendant may withdraw a guilty plea . . .

(1) before the court accepts the plea, for any reason or no reason;

or

(2) after the court accepts the plea, but before it imposes sentence

if:

(A) the court rejects a plea agreement under 11(c)(5); or

(B) the defendant can show a fair and just reason for requesting withdrawal.

Fed. R. Crim. P. 11(d). Rule 11(d)(2)(B) applies to the present case. “This rule is designed ‘to

allow a hastily entered plea made with unsure heart and confused mind to be undone, not to allow

a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain a

withdrawal if he believes he made a bad choice in pleading guilty.’” United States v. Ellis, 470

6 Ballard has not brought a claim of ineffective assistance on the ground that Attorney Ballin failed

to prepare for trial. However, he does suggest that he pled guilty because Ballin was not prepared

to go to trial. Ballin’s affidavit shows otherwise.

21

F.3d 275, 280–81 (6th Cir. 2006) (citations omitted). “Withdrawal of a plea is appropriate [when]

there is a real confusion or misunderstanding of the terms of the agreement.” Id. at 281 (citation

omitted). In contrast to filing a notice of appeal, “a defendant has no right to have his attorney

carry out every other request he makes, without regard to whether the request is meritless or

frivolous. Such requests certainly include a motion to withdraw a plea, which are disfavored in

federal courts, even when made before a sentence is imposed.” Franks v. Lindamood, 401 F. App’x

1, 6 (6th Cir. 2010).

The parties also agree that the Court must look to the Sixth Circuit’s non-exclusive

seven-factor list set out in United States v. Bashara7 to determine whether withdrawal is “fair and

just’@ under 11(d)(2)(B). These factors include:

(1) the amount of time that has elapsed between the plea and motion to withdraw

it; (2) the presence (or absence) of a valid reason for failure to move for withdrawal

earlier in the proceedings; (3) whether the defendant has asserted or maintained his

innocence; (4) the circumstances underlying the entry of the guilty plea; (5) the

defendant’s nature and background; (6) the degree to which the defendant has had

prior experience with the criminal justice system; and (7) potential prejudice to the

government if the motion to withdraw is granted.

Bashara, 27 F.3d at 1181.

After considering these factors, the Court finds that Attorney Ballin’s failure to move to

withdraw Ballard’s plea was not deficient performance because Ballard entered his plea knowingly

and voluntarily and did not communicate any sufficient basis for withdrawing his plea. Ballard

cannot show prejudice because he has not shown a reasonable likelihood that he would have been

permitted to withdraw his plea, particularly given the delay between his plea hearing and when he

advised Attorney Ballin that he was considering withdrawing his plea.

7 United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994), superseded on other grounds by

United States v. Caseslorente, 220 F.3d 727, 734 (2000).

22

Ballard acknowledges that the delay between entry of his guilty plea and his request for

the motion to be filed was approximately two and a half months. And, he admits that “[t]he shorter

the delay, the more likely a motion to withdraw will be granted, and a defendant’s reasons for

filing such a motion will be more closely scrutinized when he has delayed his motion for a

substantial length of time.” United States v. Triplett, 828 F.2d 1195, 1197 (6th Cir. 1987). He

points out that delay alone does not mean that he lacked a fair and just reason for withdrawing his

plea. But, it is a factor for the Court to consider under Bashara.

According to Ballard, due to his inexperience with the legal system and lack of guidance,

he was under the mistaken impression that he could withdraw his guilty plea at any time. However,

he has offered nothing to support his “mistaken impression” such as correspondence with Attorney

Ballin or even by pointing to statements made by Ballin that allegedly misled him into thinking he

could withdraw his guilty plea at any time. He does contend that Ballin’s instructions to him “to

wait several weeks then provide counsel with reasons for withdrawing was unreasonable under the

circumstances.” The Court views this otherwise. It was entirely reasonable for Attorney Ballin to

advise Ballard to take some time to consider his reasons for wanting to withdraw his plea and

whether doing so would be in his best interest.

Attorney Ballin memorialized his conversation with Ballard about the prospect of filing a

motion to withdraw Ballard’s guilty plea in a letter dated September 15, 2021, reminding Ballard

that withdrawal would require court approval after showing a “fair and just reason,” and that doing

so could have detrimental collateral consequences. (Ballin Aff. p. 18, ECF No. 18-3.) Attorney

Ballin stressed that it was “imperative that you keep the lines of communication with our office

open over the coming weeks,” and he directed Ballard to “advise [Attorney Ballin] by October 4,

2021 how you intend to proceed.” (Id.) As noted above, Ballard did not “keep the lines of

23

communication open.” Instead, Ballard waited until October 4 to confirm that he wanted to

withdraw his plea. According to Ballard, “Mr. Ballin called me back later that day [October 4],

and told me he could not file the motion to withdraw because the reasons I gave him ‘[we]re

frivolous,’” after which “Mr. Ballin and I closed the conversation with the understanding that I

would seek advice from another attorney [about the possibility of filing a motion to withdraw].”

(Mot. p. 37, ECF No. 1.)

One week later, on October 11, 2021 (eight days before his sentencing hearing), Ballard

discussed withdrawing his plea with Attorney Camp who pointed out the various collateral

consequences that could arise from withdrawal and recommended against filing a motion to

withdraw. (Id.) Ballard then informed Attorney Ballin that he would proceed with sentencing. (Id.)

At sentencing, Ballard chose not to make any statement. Contrary to Ballard’s assertions, he

received advice from two attorneys concerning the advisability of filing a motion to withdraw his

plea which undercuts his claim that he received “no guidance” in making his decision.

Ballard argues that he has steadfastly asserted his innocence. However, this ignores his

sworn statements during the plea colloquy that the factual basis contained in the plea agreement

was accurate and that his plea was knowing and voluntary. Ballard admitted to the Court, under

oath, that he was pleading guilty because he was guilty and for no other reason. See Hasan v.

United States, 2023 WL 116707, at *2 (E.D. Tenn. Jan. 5, 2023) (When “the court has scrupulously

followed the required procedure [during a plea colloquy], ‘the defendant is bound by his statements

in response to that court’s inquiry.’” (quoting Baker v. United States, 781 F.2d 85, 90 (6th Cir.

1986))). Moreover, Ballard signed the plea agreement two days before the plea hearing

acknowledging the same factual basis recited at the plea colloquy.

24

As for the circumstances underlying the guilty plea, Ballard acknowledges that the Rule 11

colloquy presents a “formidable barrier in any subsequent collateral proceedings.” Blackledge v.

Allison, 431 U.S. 63, 74 (1977). However, there exists the possibility “that a defendant’s

representations at the time his guilty plea was accepted were so much the product of such factors

as misunderstanding, duress, or misrepresentation by others . . . .” Id. at 75. Ballard claims that he

entered his guilty plea under “several misunderstanding and misrepresentations” including the

mistaken belief that he could withdraw his guilty plea at any time for any reason. However, he has

provided no support for his claim. Moreover, Ballard received what he bargained for regarding his

plea agreement. He avoided a possible life sentence and “saved” his family from financial ruin by

bargaining for and receiving certain financial concessions. Moreover, he and his family avoided

the attendant publicity that a trial would have generated. Of lesser note, although it seems to have

been important to Ballard, by entering into a plea agreement, he was allowed to self-report to

prison.

Ballard’s nature and background weigh against disturbing the finality of his guilty plea.

Ballard has an advanced degree, is able to read, write, and understand written records, and

possessed the faculties necessary to fully grasp – over the course of more than two years and with

Attorney Ballin’s assistance – the nature of the charges against him and the impact of resolving

his criminal case by plea.

The Government acknowledges that Ballard lacks experience with the criminal justice

system. Thus, this factor weighs in his favor.

Next, Ballard contends that the prejudice to the Government would have been minimal at

the time that he requested the motion be filed. To the contrary, the Court agrees with the

Government that it would have been prejudiced if Ballard had been permitted to withdraw his plea.

25

Ballard was indicted in April 2019. Over two years elapsed while the Government and Attorney

Ballin litigated pretrial issues, prepared for trial, and engaged in plea negotiations. Given the

passage of time, out-of-state and out-of-city experts, and the death of at least one witness

(according to the Government), continued delay would have prejudiced the Government.

In summary, Ballard has failed to show that, after discussing withdrawing his guilty plea

with Attorney Ballin, he actually instructed him to file such a motion. Furthermore, Attorney Ballin

has explained why doing so was not in Ballard’s best interests, and Attorney Camp provided

independent advice that Ballard should not proceed with a motion to withdraw his plea. Thus,

Ballard has not shown that Attorney Ballin’s representation fell below “an objective standard of

reasonableness,” especially when considering the “strong presumption” that his representation was

“within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 688-89.

As for Strickland’s prejudice analysis, Ballard must show that Attorney Ballin filing his

motion to withdraw would have changed the outcome of the proceeding. He cannot do so. “[W]hen

a defendant has entered a knowing and voluntary plea of guilty at a hearing at which he

acknowledged committing the crime, the occasion for setting aside a guilty plea should seldom

arise.” United States v. Ellis, 470 F.3d 275, 280-81 (6th Cir. 2006) (quoting United States v.

Morrison, 967 F.2d 264, 268 (8th Cir. 1992)).

Ballard has not shown that Attorney Ballin’s performance was below that guaranteed in

the Sixth Amendment. Nor has he shown that, but for Ballin’s ineffectiveness, there is a reasonable

probability that, after assessment of the Bashara factors, the motion would have been granted, and

Ballard would have gone to trial instead. Thus, this claim fails.

26

Ballard’s third claim is that, after the Supreme Court’s decision in Ruan v. United States,

597 U.S. 450 (2022), there is an insufficient factual basis for his guilty plea.8 Ruan did not change

the elements of a controlled substances charge under 21 U.S.C. ' 841(a)(1). Instead, the Ruan

Court held that, if a physician defends the charge based on authorization — that he dispensed

controlled substances “pursuant to valid prescriptions” — the Government must do more than

show that the prescriptions lacked “a legitimate medical purpose.” Id. at 455, 457. The

Government must prove that the physician “knowingly or intentionally acted in an unauthorized

manner.” Id. at 464-65, 457 (“Once the defendant meets his or her burden of production, then, the

Government must prove lack of authorization beyond a reasonable doubt.”).

In the present case, Ballard acknowledged acting with the requisite mens rea in the factual

basis of the plea agreement and again at the change of plea hearing. Specifically, he admitted that

he “unlawfully distributed and dispensed the Schedule II controlled substance hydrocodone to one

of his patients, A.L., including on the day before A.L. died from an overdose of the hydrocodone

that Defendant Ballard had prescribed her,” and that he “did intentionally and knowingly distribute

and dispense, not for a legitimate medical purpose and outside the scope of professional practice,

hydrocodone, a Schedule II controlled substance, to [A.L.], and her death resulted from the use of

that hydrocodone.” (Plea Agr. P. 2, ECF No. 101, No. 1:19-cr-10042-STA; (Tr. pp. 23-24, ECF

No. 108, 1:19-cr-10042-STA.) This factual basis of the crime, as admitted to by Ballard under

oath, supports the crime for which he was convicted. The Supreme Court’s holding in Ruan does

not change that outcome.

8 The Government argues that Ballard has procedurally defaulted on this claim. The Court need

not reach that issue but, instead, will decide the claim on the merits.

27

Appeal Issues

A § 2255 movant may not proceed on appeal unless a district or circuit judge issues a

certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A COA

may issue only if the movant has made a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2)-(3). A substantial showing is made when the movant demonstrates

that “reasonable jurists could debate whether (or, for that matter, agree that) the [motion] should

have been resolved in a different manner or that the issues presented were ‘adequate to deserve

encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “If the [motion] was denied on procedural

grounds, the [movant] must show, ‘at least, that jurists of reason would find it debatable whether

the [motion] states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural ruling.’” Dufresne

v. Palmer, 876 F.3d 248, 252-53 (6th Cir. 2017) (per curiam) (quoting Slack, 529 U.S. at 484).

In this case, reasonable jurists would not debate the correctness of the Court’s decision

to deny the motion. Because any appeal by Ballard does not deserve attention, the Court

DENIES a certificate of appealability.

Pursuant to Federal Rule of Appellate Procedure 24(a), a party seeking pauper status on

appeal must first file a motion in the district court, along with a supporting affidavit. Fed. R.

App. P. 24(a). However, Rule 24(a) also provides that if the district court certifies that an appeal

would not be taken in good faith, the prisoner must file his motion to proceed in forma pauperis

in the appellate court. Id. In this case, for the same reason it denies a COA, the Court

CERTIFIES, pursuant to Rule 24(a), that any appeal in this matter would not be taken in good

faith.

28

Leave to appeal in forma pauperis is therefore DENIED.9

IT IS SO ORDERED.

s/ S. Thomas Anderson

S. Thomas Anderson

United States District Judge

Date: April 2, 2026.

9 If Ballard files a notice of appeal, he must also pay the full $505.00 appellate filing fee or file a

motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals

within thirty days.

29