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Date: 09-03-2021
Case Style:
CESAR BALTAZAR SANCHEZ v. United States of America
Case Number: 4:18-CV-08001-RDP
(4:16-CR-00258-RDP-JHE-1)
Judge: R. DAVID PROCTOR
Court: UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
Plaintiff's Attorney: Not Listed
Defendant's Attorney:
Description:
Birmingham, AL - Criminal defense lawyer represented Petitioner with one count of conspiracy to distribute and possess with intent to distribute methamphetamine; one count of possession with intent to distribute a mixture and substance containing a detectable amount of methamphetamine (Count Two); and distribution of methamphetamine charges and his motion to Motion to Vacate, Set Aside, or Correct a Sentence.
As part of a multi-party criminal conspiracy case, Sanchez was indicted on the following
charges: one count of conspiracy to distribute and possess with intent to distribute
methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) (Count One); one
count of possession with intent to distribute a mixture and substance containing a detectable
amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2
(Count Two); and distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A) and 18 U.S.C. § 2 (Count Five). (Cr. Doc. # 1). On June 6, 2017, Petitioner pleaded
guilty to Counts One, Two, and Five. (Cr. Doc. # 75). And, as part of an accompanying plea deal,
Petitioner waived his rights to appeal his sentence and/or conviction notwithstanding some claims
enumerated in the plea agreement, such as ineffective assistance of counsel. (Cr. Doc. # 54).
After Petitioner pleaded guilty, a Presentence Investigative Report (“PSR”) was prepared
and disclosed to the parties. (Cr. Doc. # 73). Given Petitioner’s prior history and total offense level,
the sentencing guideline range was 262 to 327 months. (Cr. Doc. # 67). Initially, Petitioner
objected to the sentencing range, but his objection was overruled by the court, which found the
guideline range appropriate. (Cr. Doc. # 88). On June 9, 2017, this court varied and sentenced
Petitioner to a term of 220 months of imprisonment, followed by 60 months of supervised release.
(Cr. Doc. # 87). Petitioner did not file a direct appeal after his sentencing.
In his Motion (Doc. # 1), Petitioner claims his attorney, W. Scott Brower (“Brower”), failed
to consult with Petitioner regarding an appeal and/or failed to follow Petitioner’s direction to file
an appeal. The court addresses those claims below.
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II. Discussion
When serving as a fact finder, district courts are called upon to make credibility findings.
It is a common occurrence that a claimant lays the blame at the foot of the respondent and that the
respondent disputes the version of events the claimant alleges. Colloquially, this has been referred
to as a “he said, she said” situation. Petitioner’s original habeas petition fell squarely into this
category. Indeed, more precisely, Petitioner presented the court with a “he (Petitioner) said, he
(Brower) said” dispute. But, at the hearing, Petitioner’s claim appeared to transmogrify.
In his § 2255 Motion, Petitioner alleged that after sentencing, he requested Brower, through
an interpreter,1
to file a notice of appeal because Brower had led Petitioner to believe that he was
going to receive a sentence of less than 220 months. (Doc. # 1 at 14). According to Petitioner, not
only did Brower fail to file an appeal, but Brower also failed to consult with Petitioner regarding
his appellate rights and the advantages and disadvantages of filing an appeal. (Doc. # 1). (“After
the sentencing, [Petitioner] avers that he spoke to the Interpreter about filing an appeal in light of
the fact that he had received more time than was originally expressed by Attorney W. Scott
[Brower]. In which the Interpreter expressed this to his defense counsel.”). Thus, in his § 2255
Motion, Petitioner contends that he was denied effective assistance of counsel when his attorney
did not comply with his specific request to file a notice of appeal in his criminal case and again
when Brower failed to consult with him regarding the filing of an appeal. (Doc. # 1 at 15-17, 20).
So, in his petition, Petitioner blamed Brower, not the interpreter, for the failure to file an appeal.
(Doc. # 1). Brower responded by affidavit. He maintained that he consulted with Petitioner
regarding his appellate rights and that Petitioner never requested an appeal. (Doc. # 10-1).
1 Petitioner’s native language is Spanish, and his English proficiency is limited.
Case 4:16-cr-00258-AKK-JHE Document 124 Filed 05/26/21 Page 3 of 10
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But, at the evidentiary hearing, Petitioner’s story changed. Instead of claiming that Brower
was at fault for not filing an appeal, Petitioner asserted that the interpreter at his sentencing failed
to convey (or translate) Petitioner’s statements to Brower. In other words, instead of presenting a
“he (Petitioner) said, he (Brower) said” controversy, Petitioner pointed to a “he (Petitioner) said,
she (the interpreter) didn’t say” dispute.2 Furthermore, Petitioner candidly admitted that Brower
had consulted with him regarding his appellate rights in advance of his sentencing. (Doc. # 29 at
31). With this change of the story in mind, the court turns to Petitioner’s claims.
To prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate that
(1) his attorney’s performance failed to meet “an objective standard of reasonableness” and (2)
because of that substandard performance, his rights were prejudiced. Strickland v. Washington,
466 U.S. 668, 687-93 (1984). In the Motion, Petitioner makes two intertwined claims that must be
analyzed slightly differently under Strickland and its progeny. Petitioner maintains: (1) Brower
failed to file an appeal despite being explicitly directed to do so by Petitioner through the aid of an
interpreter (Doc. # 1) and (2) Brower failed to consult with Petitioner about the filing of an appeal
(Docs. # 1, 11).
The Supreme Court in Roe v. Flores-Ortega determined a defendant should be granted an
out-of-time appeal if the defendant shows his attorney failed to file an appeal after the defendant
explicitly directed him to do so. A similar remedy is available to a defendant who shows his
attorney failed to “consult” with him regarding an appeal so long as there was “reason [for the
attorney] to think either (1) that a rational defendant would want to appeal (for example, because
there [were] nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably
2 Though the court has reviewed Brower’s testimony, the court has not been presented with testimony by the
interpreter as Petitioner did not raise this claim in his petition or reference it until the evidentiary hearing. (See Doc.
# 29 at 7, 13).
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demonstrated to counsel that he was interested in appealing.” 528 U.S. 470, 480 (2000). These
lines of inquiry essentially replace the first prong of the Strickland test — a finding that a lawyer
failed to file an appeal or failed to reasonably consult about one will lead a court to conclude the
petitioner’s counsel “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at
688; Flores-Ortega, 528 U.S. at 480.
In Gomez-Diaz v. United States, the Eleventh Circuit held “that an attorney who fails to
file an appeal on behalf of a client who specifically requests it acts in a professionally unreasonable
manner per se” and that this rule “applies with equal force [even] where a defendant has waived
some, but not all, of his appeal rights.” 433 F.3d 788, 792 (11th Cir. 2005); see Flores-Ortega,
528 U.S. at 477; Medina v. United States, 167 F. App’x 128, 134 (11th Cir. 2006). The Eleventh
Circuit has been clear that when a defendant waives some of his appellate rights, but still expresses
to counsel a desire to appeal his sentence, it is imperative that the district court (1) conduct an
evidentiary hearing and (2) determine whether the defendant’s statements “sufficient[ly] trigger
his counsel’s per se duty to appeal. Gomez-Diaz, 433 F.3d at 793.
In addressing the prejudice prong of Strickland, in cases where a defendant alleged his
counsel failed to consult with him the Supreme Court has explained that “to show prejudice in
these circumstances, a defendant must demonstrate that there is a reasonable probability that, but
for counsel’s deficient failure to consult with him about an appeal, he would have timely
appealed.” Flores-Ortega, 528 U.S. at 484. To satisfy this burden, the defendant is not required
to “specify the points he would raise were his right to appeal reinstated.” Id. at 486. Although a
defendant may point to his interest in filing an appeal as evidence, a defendant cannot depend
entirely on this evidence to establish that, “had [he] received reasonable advice from counsel about
the appeal, he would have instructed his counsel to file an appeal.” Id.
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The papers filed by the parties evidenced conflicting statements as to whether Petitioner
explicitly told Brower to file an appeal and whether Brower “explained [to Petitioner] the appellate
process or the advantages and disadvantages of taking an appeal, []or that he was obligated to file
an appeal if that was what [Petitioner] wanted.” Thompson v. United States, 504 F.3d 1203, 1207
(11th Cir. 2007). Brower testified in his affidavit that he met with Petitioner on multiple occasions
with the aid of an interpreter and that Petitioner never directed him to file an appeal. (Doc. # 10-
1). Further, Brower stated that he discussed with Petitioner the following with the aid of an
interpreter: Petitioner’s rights regarding appeal, his chances of a successful appeal, what
circumstances would allow Petitioner to appeal in accordance with the guilty plea waiver, and the
time limits on filing any appeal. (Id.). Petitioner initially maintained that he explicitly directed
Brower to file an appeal and that Brower never consulted him regarding appeal. (Docs. # 1, 11).
This was the subject of testimony during the evidentiary hearing. However, as mentioned above,
Petitioner admitted at the hearing that Brower informed him of his appellate rights. (Doc. # 29 at
31).
Based upon the conflicting positions in the parties submissions, on April 26, 2021, the court
held an evidentiary hearing to determine: (1) whether Brower failed to consult with Petitioner
about filing an appeal; (2) whether Brower failed to file an appeal despite being explicitly directed
to do so by Petitioner; and (3) whether Petitioner could demonstrate that but for Brower’s alleged
failure to consult with him, Petitioner would have filed an appeal.
Based on the testimony and facts presented at the hearing and the record, the court finds
that Brower adequately counseled Petitioner about his appellate rights and that Brower was never
asked to file an appeal. Therefore, for these reasons, and for the other reasons discussed below,
both of Petitioner’s claims fail.
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As Petitioner admitted at the evidentiary hearing, Brower informed him of his appellate
rights in advance of the sentencing hearing and directed Petitioner as to the steps that were
necessary to appeal his sentence. (Doc. # 29 at 31). When informing Petitioner of his appellate
rights, Brower maintains he discussed with Petitioner his rights regarding appeal, his chances of a
successful appeal, what circumstances would allow Petitioner to appeal in accordance with the
guilty plea waiver, and the time limits on filing any appeal. (Doc. # 10-1). Despite asserting
otherwise in his original § 2255 filing, Petitioner no longer disputes that Brower advised him of
his appellate rights. (Doc. # 29 at 31). Therefore, the court finds Brower met the Supreme Court’s
standard for adequate consultation about an appeal. See Flores-Ortega, 528 U.S. at 478 (stating
that an attorney “consults” with her client if she “advis[es] the defendant about the advantages and
disadvantages of taking an appeal, and mak[es] a reasonable effort to discover the defendant’s
wishes”); Guaranda v. United States, 2017 WL 1730097, at *10 (M.D. Fla. June 14, 2007) (finding
that the petitioner’s attorney did not need to consult with the petitioner “during the ten days
immediately following sentencing” because the attorney had discussed the petitioner’s appellate
rights with the petitioner prior to sentencing). Accordingly, the court concludes that Brower acted
reasonably by consulting with Petitioner and that Petitioner’s “failure-to-consult” claim fails under
Strickland’s first prong.
Having said that, the court concludes alternatively that even if Petitioner succeeded in
showing that Brower failed to act reasonably by consulting with Petitioner regarding his appellate
rights (and, to be clear, Petitioner has not succeeded in making such a showing), Petitioner’s
failure-to-consult claim still fails because he has not shown Brower was put on notice (or aware)
that there was a need to consult with Petitioner.
3
To satisfy Strickland’s second prong with regard
3 To be sure, consulting with a defendant regarding appeal is best practice. See Flores-Ortega, 528 U.S. at
479 (citation omitted) (“[T]he better practice is for counsel routinely to consult with the defendant regarding the
Case 4:16-cr-00258-AKK-JHE Document 124 Filed 05/26/21 Page 7 of 10
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to a failure-to-consult claim, a petitioner must show there was “reason [for the attorney] to think
either (1) that a rational defendant would want to appeal (for example, because there [were]
nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to
counsel that he was interested in appealing.” Flores-Ortega, 528 U.S. at 480. Here, neither
condition is met.
In his plea agreement Petitioner waived his right of appeal (with limited exceptions), at his
plea hearing he indicated to the court his waiver was knowingly and voluntarily made, and
ultimately at his sentencing hearing he received a below Guidelines sentence. (Cr. Docs. # 54, 87,
88). The Eleventh Circuit has found that similar facts weigh against a finding that an attorney
would have reason to believe his client would want to appeal. See Gaston v. United States, 318
Fed. App’x. 750, 752 (11th Cir. 2008) (citing Devine v. United States, 520 F.3d 1286, 1288-89
(11th Cir. 2008) (finding “there was no non-frivolous ground for appeal” because, in part,
“defendant had pled guilty, there was an appeal waiver, and defendant had received a sentence at
the bottom of the guidelines”)). Thus, after reviewing the record and taking into account the
testimony presented at the evidentiary hearing, the court finds that Brower had no reason to believe
a rational defendant facing such an outcome would wish to appeal. And, as addressed in more
detail below, the court also finds that Petitioner never demonstrated to Brower that he was
interested in appealing his sentence. Thus, Petitioner’s failure-to-consult claim fails under
Strickland’s second prong.
Petitioner’s claim that Brower failed to file an appeal after being directed to do so fares no
better. Unlike a failure-to-consult claim, which requires a determination of whether the petitioner’s
rights are prejudiced, Strickland’s second prong is presumed to be met if a petitioner succeeds in
possibility of an appeal.”). But, consulting with a client regarding his or her appellate rights is constitutionally
mandated only in certain situations.
Case 4:16-cr-00258-AKK-JHE Document 124 Filed 05/26/21 Page 8 of 10
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showing that he directed his attorney to file an appeal and that his attorney failed to do so. See
Gomez-Diaz, 433 F.3d at 791-92 (citations omitted) (“The Court first reaffirmed the well-settled
rule that an attorney who fails to file an appeal on behalf of a client who specifically requests it
acts in a professionally unreasonable manner per se.”). Accordingly, the success of Petitioner’s
claim that Brower failed to file an appeal despite being directed to do so depends only upon
whether Petitioner did, in fact, direct Brower to file an appeal.
Based on the testimony presented at the evidentiary hearing, the court credits the testimony
of Brower and rejects the testimony of Petitioner. Brower’s testimony was definitive and specific.
For example, Brower recalled specific discussions he had with Petitioner prior to sentencing
including conversations about undercover buys and discovery. (Doc. # 29 at 20). Petitioner’s
testimony was vague and often contradictory. For example, Petitioner maintained that because of
the interpreter’s errors at the sentencing, he did not understand at the time that he had been
sentenced to 220 months. (Doc. # 29 at 7). But, Petitioner also previously claimed that he told
Brower (through the interpreter) to file an appeal at the end of the same hearing because he
believed 220 months was too great of a sentence. (Doc. # 29 at 31-32). So, Petitioner’s testimony
at the evidentiary hearing conflicts with the assertions he made in his original § 2255 filing —
namely that Brower was at fault for the failure to file an appeal, not the interpreter.
4
(See Doc. # 1
at 14) (“After the sentencing, [Petitioner] avers that he spoke to the Interpreter about filing an
appeal in light of the fact that he had received more time than was originally expressed by Attorney
W. Scott [Brower]. In which the Interpreter expressed this to his defense counsel.”).
4 The court has doubts as to whether Petitioner’s “failure-to-file” claim under the Flores-Ortega line of cases
is even legally viable. But see Chacon v. Wood, 36 F.3d 1459, 1464-65 (9th Cir. 1994) (determining an error by an
interpreter can give rise to an ineffective assistance of counsel claim). The Supreme Court in Flores-Ortega dealt with
ineffective assistance of counsel. 528 U.S. at 480. But, Petitioner’s claim (at least now) is that his translator erred.
Case 4:16-cr-00258-AKK-JHE Document 124 Filed 05/26/21 Page 9 of 10
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Accordingly, the court finds that Petitioner never directed Brower to file an appeal and, as
a result, this claim also fails
Outcome: For the foregoing reasons, Petitioner Cesar Baltazar Sanchez’s Motion to Vacate, Set
Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255 (Doc. # 1) is due to be denied. A separate Order will be entered.
DONE and ORDERED this May 26, 2021.
Plaintiff's Experts:
Defendant's Experts:
Comments: