                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

__________________________
                          )
UNITED STATES OF AMERICA, )
                          )
     v.                   )
                          )    Criminal Action No. 05-100-7 (RWR)
JASMINE BELL,             )
                          )
     Defendant.           )
__________________________)


                         MEMORANDUM OPINION

     Petitioner Jasmine Bell moves under 28 U.S.C. § 2255 to

vacate, set aside, or correct his sentence arguing that his

attorney provided ineffective assistance by not complying with

his instruction to file a notice of appeal.    The government

opposes Bell’s motion arguing that Bell did not ask his attorney

to file a notice of appeal.    Because Bell has not proven by a

preponderance of the evidence that he asked his attorney to file

a notice of appeal, Bell’s motion will be denied.

                              BACKGROUND

     In November 2001, Jasmine Bell was arrested for various

drug-related offenses.   See Mem. of Law and Args. in Supp. of

Mot. to Vacate, Set Aside, or Correct an Illegal Sentence

Pursuant to Title 28 Sect. 2255 (“Pet’r Mem.”) at 4.     In January

2002, Bell was serving misdemeanor sentences imposed by the D.C.

Superior Court that expired in September 2002.    Id.   In May
                                 - 2 -


2002, Bell was sentenced to three years imprisonment for a drug

offense and, in August 2002, Bell was sentenced to an additional

two years of imprisonment by the D.C. Superior Court for another

drug offense.   See id.; see also United States’ Mot. to Dismiss

Def.’s Nunc Pro Tunc Mot. (“Gov’t Mot.”) at 1-2; Pet’r Mem., Ex.

2, Decl. of Patrick Liotti (“Liotti Decl.”) ¶¶ 4-5.       Thus, when

Bell’s original misdemeanor sentence expired, he began serving

an aggregated total of five years.       See Pet’r Mem. at 4; see

also Liotti Decl. ¶ 11.

     In December 2002, Bell was received at the Federal

Correctional Institute in Beckley, West Virginia to serve his

five-year sentence. 1   Pet’r Mem. at 4.    He was indicted in a

superseding indictment for various drug charges by a federal

grand jury in 2005.     Gov’t Mot. at 2.    While Bell was serving

his five-year sentence, he was transported to the United States

District Court for the District of Columbia by the U.S. Marshals

under a writ of habeas corpus ad prosequendum to face his

federal charges.   Pet’r Mem. at 4; Gov’t Mot. at 2.

     In August 2006, Bell pled guilty under Federal Rule of

Criminal Procedure 11(c)(1)(C) 2 to conspiracy to engage in


     1
       D.C. Code offenders are housed in federal prisons or
contract facilities. See Liotti Decl. ¶ 6.
     2
       A Rule 11(c)(1)(C) plea agreement reflects the parties’
agreement on a particular term of imprisonment or a range of
imprisonment. Fed. R. Crim. P. 11(c)(1)(C).
                                  - 3 -


racketeering in violation of 18 U.S.C. § 1962(d).      Gov’t Mot. at

3.    The plea agreement exposed Bell to a range of 135 to 168

months imprisonment.     Id.   Before sentencing, Bell’s attorney,

Joseph Beshouri, moved under United States Sentencing Guidelines

(“USSG”) § 5G1.3 for a reduction, below the range agreed to in

the plea agreement, in light of Bell’s D.C. Superior Court

sentences. 3   United States’ Resp. to Def.’s Nunc Pro Tunc Mot.

(“Gov’t Resp.”), Ex. D, Def.’s Mem. in Aid of Sentencing at 7-

10.    This court denied the reduction motion and on December 1,

2006, sentenced Bell to 146 months, within the agreed-upon

range.     Id., Ex. E, Tr. of Bell’s Sentencing (“Sent’g Tr.”) at

61-62; id., Ex. F at 2.

       In March of 2007, Bell wrote the court a letter seeking

credit on his current sentence for time he spent detained while

awaiting trial.     Gov’t Mot. at 3-4; Pet’r Mem., Ex. 3, Mar. 2007

Letter.     In October of 2007, Bell wrote a second letter in which

he requested appointment of a new attorney because his attorney

would not file an appeal on his behalf.      See Gov’t Resp., Ex. I,

Oct. 2007 Letter.     Bell, who was at that time housed at the

Federal Correctional Institute in Bennettsville, South Carolina,

then filed a petition for a writ of habeas corpus under 28


       3
       Perhaps because of challenges like these, Rule 11(c)(1)(C)
plea agreements in this district now tend to include language in
which the defendant will waive any right to move for a USSG
reduction. See infra n.7.
                                 - 4 -


U.S.C. § 2241 in the United States District Court for the

District of South Carolina.    See Pet’r Mem. at 4.     Bell’s

petition was denied.   Id.

     Bell moves under 28 U.S.C. § 2255 to vacate, set aside, or

correct his sentence arguing that he received ineffective

assistance of counsel because his trial counsel, Beshouri,

failed to appeal despite Bell’s request to Beshouri to file an

appeal.   The government opposes, arguing that Bell never asked

Beshouri to file a notice of appeal.       Because of the factual

disputes on the record, an evidentiary hearing on Bell’s § 2255

claim was held on July 18, 2014.    Because Bell has failed to

prove by a preponderance of the evidence that he asked Beshouri

to file a notice of appeal, Bell’s motion will be denied.

                              DISCUSSION

     In a § 2255 motion, a petitioner can move the sentencing

court to “vacate, set aside or correct the sentence” if “the

sentence was imposed in violation of the Constitution or laws of

the United States, . . . or [if] the sentence was in excess of

the maximum authorized by law[.]”    28 U.S.C. § 2255(a).     The

burden lies on the petitioner to prove the violation by a

preponderance of the evidence.    United States v. Pollard, 602 F.

Supp. 2d 165, 168 (D.D.C. 2009).

     The Sixth Amendment provides criminal defendants the right

to be represented by counsel.    U.S. Const. amend. VI.     Implicit
                                - 5 -


in this guarantee is that counsel will provide effective

assistance of counsel.   McMann v. Richardson, 397 U.S. 759, 771

n.14 (1970) (“[T]he right to counsel is the right to the

effective assistance of counsel.”).     In order to prove

ineffective assistance of counsel, Bell must show (1) that

counsel’s representation fell below an objective standard of

reasonableness, and (2) that there is a reasonable probability

that but for counsel’s errors, the result of the proceeding

would have been different.    Strickland v. Washington, 466 U.S.

668, 684-88, 694 (1984).   “The Strickland test extends to claims

of ineffective assistance based on a failure to file an appeal.

. . .   A lawyer who disregards specific instructions from the

petitioner to file a notice of appeal acts in a professionally

unreasonable manner.”    United States v. Felder, 563 F. Supp. 2d

160, 167 (D.D.C. 2008) (citing United States v. Taylor, 339 F.3d

973, 977 (D.C. Cir. 2003)).

     Counsel’s failure to file an appeal requested by the
     client “cannot be considered a strategic decision.”
     . . . A petitioner is entitled to resentencing and to
     an appeal without having to show that it would likely
     have had merit when his counsel does not file a
     requested appeal.   . . .   If a petitioner’s attorney
     does not comply with a request to file an appeal, the
     sentence will be vacated and the petitioner will be
     resentenced to allow him to appeal.
                                - 6 -


Moore v. United States, 881 F. Supp. 2d 125, 136 (D.D.C. 2012)

(quoting Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)). 4

     In addition, Bell’s appeal had to have been taken within 10

days after his sentencing judgment was entered.    Fed. R. App. P.

4(b)(1)(A)(i), 4(b)(6). 5   Alternatively, “[u]pon a finding of

excusable neglect or good cause, the district court may . . .

extend the time to file a notice of appeal for a period not to

exceed 30 days from the expiration of the time otherwise

prescribed . . . .”   Id. 4(b)(4); see also Evidentiary Hr’g Tr.,

July 18, 2014, (“Hr’g Tr.”) at 70:23-71:8.

     Here, Bell contends that he asked Beshouri to file an

appeal, in person, immediately following his sentencing hearing

and again, through letters, in the months following his

sentencing hearing.   Bell also contends that Beshouri failed to

file any such notice of appeal and thereby rendered ineffective

assistance.   Since it is undisputed that Beshouri did not file a


     4
       If the petitioner’s attorney fails to consult with his
client regarding an appeal, “the court must in turn ask a
second, and subsidiary question: whether counsel’s failure to
consult with the defendant itself constitutes deficient
performance.” Flores-Ortega, 528 U.S. at 478. However, Bell
has not alleged that his attorney failed to consult with him
regarding an appeal.
     5
       At the time Bell was sentenced, the appellate rules
provided 10 days to appeal a sentence. In 2009, the time period
changed to 14 days. Fed. R. App. P. 4, Advisory Committee Notes
(2009 Amendments) (“Subdivisions (b)(1)(A) and (b)(3)(A). The
times set in the former rule at 10 days have been revised to 14
days.”).
                               - 7 -


notice of appeal, the central factual issues are whether Bell

asked Beshouri to file a notice of appeal and if so, the date on

which Bell made the request.

     In this case, the judgment was entered on December 8, 2006,

Gov’t Resp., Ex. F, Judgment at 1; Hr’g Tr. at 91:20-92:13,

giving Bell until December 18, 2006 to file a notice of appeal.

Bell presented unrebutted testimony that he asked Beshouri to

file an appeal while they were in the holding cell, immediately

following the sentencing hearing on December 1, 2006. 6   Hr’g Tr.

at 15:12-16.   Beshouri, on the other hand, testified that he had

no recollection of the conversation, id. at 71:21-22, and did

not remember talking to Bell immediately following Bell’s

sentencing hearing.   Id. at 71:25-72:4. 7


     6
       Bell testified that he was “just trying to remember
everything that happened to the best of [his] ability.” Hr’g
Tr. at 53:4-6. As it happens, there were minor inconsistencies.
Bell first testified that his conversation with Beshouri after
his sentencing hearing did not include a lot of details about
why he wanted an appeal, id. at 15:15-19, and ended when
Beshouri said no. Id. at 15:21-16:8; 16:14-19. On cross-
examination, Bell’s testimony was slightly different. He
testified that he told Beshouri the reasons why he wanted an
appeal and that he urged Beshouri to file an appeal even after
Beshouri told him that there was no need to file an appeal. Id.
at 50:24-52:3, 52:18-25. However, these events took place eight
years ago, and this, on its own, does not irreparably impair
Bell’s credibility.
     7
       Beshouri’s inability to recall a conversation with Bell
following Bell’s sentencing hearing is not enough, on its own,
for Bell to succeed in a § 2255 motion based on ineffective
assistance of counsel because the burden is not on Beshouri to
prove that Bell never asked for an appeal. Instead, the burden
                                 - 8 -


     Although Beshouri does not recall such a conversation,

evidence demonstrates that Beshouri vigorously represented Bell

moments before any conversation he may have had in the holding

cell after Bell’s sentencing hearing.    Hr’g Tr. at 12:20-23,

13:1-16, 67:8-18, 68:15-69:23.    Beshouri’s efforts to seek a

USSG § 5G1.3 reduction of Bell’s sentence was so vigorous that,

at one point in the hearing, the prosecutor threw down his

papers and threatened to revoke the plea agreement. 8   Id. at

23:19-23, 32:5-12, 57:2-58:16, 69:16-23, 90:18-91:3; see also

Sent’g Tr. at 48 (at the sentencing, the prosecutor stated “I

apologize to the Court and counsel if I acted more animatedly

than I needed to.   I am upset about it, clearly, and I do

clearly think that . . . this is trying to breach the



is on Bell to prove that it is more likely than not that Bell
asked for an appeal. Pollard, 602 F. Supp. 2d at 168.
     8
       At Bell’s sentencing hearing, the prosecutor thought the
plea agreement was clear by its terms in that it would not allow
Bell to move for a downward departure. Hr’g Tr. at 57:15-20;
Sent’g Tr. at 48. However, at the sentencing, Beshouri argued
that the plea agreement was ambiguous, id. at 46, and that a
USSG § 5G1.3 departure was appropriate, even in light of the
fact that the parties engaged in a Rule 11(c)(1)(C) plea. Hr’g
Tr. at 68:7-69:23. Bell’s Rule 11(c)(1)(C) plea agreement did
not contain unequivocal language that the defendant could not
seek a downward departure, as such plea agreements in this
district often state today. See, e.g., United States v.
Hubbard, Criminal Action No. 13-65 (RWR), Plea Agreement at 5
¶ 5C (“[N]either party will seek any departure or adjustment to
the Estimated Guidelines Range, nor will either party suggest
that the Court consider such a departure or adjustment
. . . .”); United States v. Brown, Criminal Action No. 13-164
(RWR), Plea Agreement at 5 ¶ 5C (same).
                                 - 9 -


agreement[.]”).    Even though Beshouri testified that he was “not

sure what there was to appeal [after the sentencing,]” Hr’g Tr.

at 76:21-22, his vigor during the sentencing makes it unlikely

that he, immediately following this hearing, would choose to

ignore or reject a directive of his client to file a notice of

appeal.

     Beshouri also credibly testified that he would have filed

an appeal had he been asked to do so.    Hr’g Tr. at 71:22-24.

Beshouri noted that it was his practice, when a client asked for

an appeal, to file the notice of appeal and immediately contact

the Federal Public Defenders’ Office so that the Federal Public

Defenders’ Office would assign the client a new appellate

attorney.    Id. at 77:16-25.   Beshouri further credibly testified

that he was aware that it was per se ineffective for an attorney

not to file an appeal when a client asked that an appeal be

filed.    Id. at 77:6-8; Gov’t Resp., Ex. L, Beshouri Decl.

(“Beshouri Decl.”) at 1.

     Bell did not present any evidence to rebut Beshouri’s claim

that it was Beshouri’s practice to file a notice of appeal when

his clients asked for one or to request that the Federal Public

Defenders’ Office assign a new attorney to cover any appeal.

Nor did Bell present evidence that Beshouri had any incentive to

lie, that Beshouri was not aware of the requirements to file an

appeal when a client asked for one, or that Beshouri was
                                - 10 -


anything but vigilant in his defense of Bell (outside of Bell’s

testimony regarding his request for an appeal).

     Instead, evidence suggests that Beshouri’s representations

of his practice are reliable.    Beshouri had been practicing

criminal defense for 20 years at the time he represented Bell

and was knowledgeable of what was at risk when a client asks for

an appeal.   Hr’g Tr. at 63:11-21.   A risk is posed both for the

client who may have a meritorious claim on appeal and for the

attorney whose reputation is at stake if she or he fails to file

the appeal and later faces an ineffective assistance of counsel

claim, like the one here.   Id. at 77:6-25; Beshouri Decl. at 1.

These consequences would have been heightened for Beshouri, who

testified that filing a notice of appeal would have been a

simple action that required minimal effort on his part, but

could have had huge professional consequences because he spent

at least 95 percent of his practice in criminal defense.     Hr’g

Tr. at 63:11-21, 77:6-25; Beshouri Decl. at 1.

     Further, Bell presents no evidence, outside of his claim

that Beshouri failed to file an appeal, to suggest that Beshouri

was not a zealous advocate for Bell.     Nor has he presented

additional affirmative evidence of his conversation with

Beshouri following his sentencing hearing.     While Bell testified

that his brother was in the holding cell at the time Bell asked

Beshouri to file an appeal, Hr’g Tr. at 12:10-14, Bell did not
                                - 11 -


call his brother as a witness.    Bell has not carried his burden

to demonstrate that, more likely than not, Bell asked Beshouri

to file an appeal immediately following the sentencing hearing.

     Outside of the conversation in the holding cell, Bell

presented unrebutted testimony that Bell tried to contact

Beshouri via phone and mail, beginning two to three weeks after

the sentencing, “around Christmastime[,]” and into 2007.     Id. at

17:15-18:24. 9   Thus, there is unrebutted testimony that Bell

asked Beshouri to file a notice of appeal within the 30-day

timeframe allotted to file an appeal due to “excusable neglect

or good cause[.]”    Fed. R. App. P. 4(b)(4).

     However, Bell has not produced any such letters from this

time period.     There is unrebutted testimony that, unfortunately,

Bell was unable to make copies because Bell did not have access

to such material because he was placed in a restrictive housing

unit at the time.    Hr’g Tr. at 18:25-19:14.   Without more,

Bell’s unrebutted testimony is not enough to prove by a

preponderance of the evidence that Bell asked Beshouri to file a

notice of appeal.

     It may be worth noting that Beshouri wrote Bell a letter in

October 2007 acknowledging that Bell asked Beshouri in October



     9
       However, Bell noted that “it was in 2007 when [he] really
started corresponding with [Beshouri] about the appeal.” Hr’g
Tr. at 21:22-25.
                               - 12 -


2007 to file a motion to correct his sentence. 10   Resp. to Gov’t

Resp. to Nunc Pro Tunc Mot. 2255, Ex. A, Oct. 2007 Letter at 1.

Although October 2007 would have been long outside the 10-day

(or 30-day) timeframe, at best, this letter corroborates Bell’s

prior statements that Bell had reached out to Beshouri “for

months.”   See Gov’t Resp., Ex. I, Oct. 2007 Letter; Hr’g Tr. at

22:5-9.    Nevertheless, without additional proof of other letters

to Beshouri 11 (or evidence of Beshouri’s incredibility),

Beshouri’s letter to Bell in October 2007 does not prove that it

is more likely than not that Bell asked Beshouri to file a

notice of appeal within the 10-day (or 30-day) period he had in

which to do so. 12


     10
        Beshouri’s declaration, prepared eight years after the
correspondence, failed to acknowledge this correspondence.
Beshouri Decl. at 2. At the evidentiary hearing, Beshouri
amended his declaration to reflect the fact that his memory was
refreshed based on viewing the letter. Hr’g Tr. at 81:1-82:8.
Given the lapse of time, this is not sufficient, on its own, to
significantly undermine Beshouri’s credibility. Moreover, the
burden is on Bell to show that Beshouri should not be believed.
Pollard, 602 F. Supp. 2d at 168. Bell has not carried that
burden.
     11
       Beshouri noted that he did not have all of his
correspondence from this period. Hr’g Tr. at 78:13-22.
Therefore, it is possible that there were more letters from Bell
to Beshouri. However, this possibility is not enough to
demonstrate that it is more likely than not that Bell asked
Beshouri to file a notice of appeal timely.
     12
       At the evidentiary hearing, the government also presented
correspondence and filings by Bell. However, this evidence is
dated beyond the deadlines to file a notice of appeal and did
not mention Bell’s appeal. See Hr’g Tr. at 43:8-45:24
                               - 13 -


     At best, the record is at equipoise.    Yet, ultimately, it

is Bell’s burden to prove that it is more likely than not that

the events happened in accordance with his testimony, and he has

failed to do so.

                             CONCLUSION

     Because Bell has failed to prove by a preponderance of the

evidence that he asked Beshouri to file a notice of appeal, Bell

is not entitled to relief under 28 U.S.C. § 2255 and his motion

will be denied.    An appropriate Order accompanies this

Memorandum Opinion.

     SIGNED this 28th day of August, 2014.



                                            /s/            .
                                RICHARD W. ROBERTS
                                Chief Judge




(discussing Gov’t Ex. 5, Bell’s letter to Beshouri in either
2008 or 2009 asking Beshouri to file for a sentence reduction in
light of a change in the sentencing guidelines); id. at 46:6-11
(discussing Bell’s 2008 motion to reduce his sentence because of
a change in the sentencing guidelines) (citing United States’
Proposed Findings of Fact and Conclusions of Law, Ex. 6); id. at
46:22-47:14 (discussing a letter to Bell from a different
attorney in 2009 discussing Bell’s motion for a sentence
reduction in light of the change in the sentencing guidelines).
