                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
UNITED STATES OF AMERICA,     )
                              )
          v.                  ) Criminal Action No. 06-363 (RWR)
                              )
JOSEPH SOOMAI,                )
                              )
          Defendant.          )
______________________________)

                        MEMORANDUM OPINION

     Defendant Joseph Soomai pled guilty in 2007 under a plea

agreement to one count of conspiracy to distribute for

importation to the United States five kilograms or more of

cocaine, see 21 U.S.C. §§ 959, 960, 963; 18 U.S.C. § 2.   He now

moves to vacate, set aside, or correct his sentence and judgment

under 28 U.S.C. § 2255, arguing ineffective assistance of counsel

because his trial counsel failed to appeal despite Soomai’s

request to file an appeal.   The government opposes Soomai’s

motion, arguing that Soomai never asked his trial counsel to file

an appeal, and trial counsel’s failure to consult Soomai about an

appeal was not constitutionally defective assistance.    Because

Soomai failed to prove that he asked his trial counsel to file an

appeal, Soomai’s motion will be denied.

                             BACKGROUND

     From May 2005 to December 2006, Soomai, along with his

accomplices, conspired to establish “a narcotics-smuggling cell
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in the United States” and met with an undercover agent to

establish “a connection to supply illegal drugs, i.e., cocaine

and heroin, to the Atlanta, Georgia, area.”    Stmt. of Facts in

Supp. of Def.’s Plea of Guilty at 1, 8.    Over several months,

Soomai and the undercover agent negotiated heroin and cocaine

purchases and deliveries.   Id. at 2-7.   Soomai and his

co-conspirators were then arrested, id. at 7-8, and Soomai was

charged with three counts drug trafficking, including conspiracy

to manufacture and distribute to the United States cocaine and

heroin.   Soomai then pled guilty to conspiracy to manufacture and

distribute into the United States five kilograms or more of

cocaine and one kilogram or more of heroin.    He was sentenced to

151 months of incarceration.

     Soomai now moves under 28 U.S.C. § 2255, challenging his

conviction.   Soomai claims his attorney, David Bos, was

ineffective because he failed to file an appeal despite Soomai’s

request after sentencing that Bos file a notice of appeal. 1   Mot.

Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence

by a Person in Federal Custody (“Mot.”).    The government contends

that Soomai did not request that Bos file an appeal.    Govt.’s

Opp’n to Def.s’ Mot. Under § 28 U.S.C. § 2255.    Because of the

factual disputes on the record, an evidentiary hearing on the


     1
        Soomai also raised three other grounds for relief, but
withdrew those claims on May 1, 2013.
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ineffective assistance of counsel claim was held on October 16,

2013.

                              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

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.”).      To establish that

representation was constitutionally deficient, Soomai must show

(1) that counsel’s representation fell below an objective

standard of reasonableness, and (2) that there is a reasonable

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

proceeding would have been different.      Strickland v. Washington,

466 U.S. 668, 687 (1984).
                               - 4 -


     To establish the performance prong, the petitioner must show

that counsel did not provide reasonable service under the

“prevailing professional norms” given the circumstances.

Strickland, 466 U.S. at 688.   When counsel consults a client

about an appeal, “[c]ounsel performs in a professionally

unreasonable manner only by failing to follow the defendant’s

express instructions with respect to an appeal.”     Roe v. Flores-

Ortega, 528 U.S. 470, 476-78 (2000) (“We have long held that a

lawyer who disregards specific instructions from the defendant to

file a notice of appeal acts in a manner that is professionally

unreasonable.”).   If counsel has not consulted the client about

an appeal, then he performs in a professionally unreasonable

manner if “counsel’s failure to consult with the defendant itself

constitutes deficient performance.”    Id. at 478.

     As to the prejudice prong, the petitioner must “show that

there is 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.   If counsel did

not file a notice of appeal despite being directed to, then there

is a presumption of prejudice because counsel’s failure to file

an appeal “deprive[s] . . . [the defendant] of the appellate

proceeding altogether.”   Flores-Ortega, 528 U.S. at 483.

     Here, Soomai contends that he asked Bos to file an appeal,

that Bos did not do so, and that Bos thereby rendered ineffective
                                - 5 -


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

notice of appeal, the dispositive factual issue is whether Soomai

in fact requested that Bos file an appeal.

     On the one hand, Soomai has presented unrebutted testimony

that he asked Bos to file a notice of appeal.   Bos’ testimony

about Soomai’s case is that he does not recall one way or the

other about whether Soomai asked him to file an appeal.

Evidentiary Hr’g Tr., Oct. 16, 2013, (“Tr.”) at 35:13-14 (stating

that he had no “specific memory of speaking to Mr. Soomai after

the sentence”).   Bos candidly admitted that it was “possible”

that Soomai requested that he file an appeal, Tr. at 40:9-11, and

that he had a heavy case load of about 40 to 60 other cases at

the same time that he handled Soomai’s case, Tr. at 45:3-5.

     On the other hand, Bos’ testimony about his common practice

was uncontested and credible.   Bos testified that his practice is

to file a notice of appeal if the defendant instructed him to.

Tr. at 36:7-10.   Importantly, Bos credibly testified that he

would file a notice of appeal upon request even if he did not

believe that the client had a meritorious claim.   Tr. at 36:11-12

(stating, in response to whether he would file a notice of appeal

if he believed there was no merit to the appeal, that “that’s not

my decision, it’s the client’s decision”).   He also testified

that he did not have any notes in Soomai’s file indicating that

Soomai wanted to file an appeal.   Tr. at 39:14-19.
                                 - 6 -


        Significantly, Soomai’s testimony about his request to file

an appeal reflects inconsistencies.      At first, in his motion,

Soomai asserts that “immediately” after the court informed him

that he had a right to appeal his case, he asked Bos to file an

appeal.    Mot. at 5(b).   Soomai explains,

        After sentencing, I was returned back to the holding
        cells behind the court room. My defense counsel, David
        W. Bos came back to the holding cells to visit with me.
        I told him I wanted to appeal the sentence.     Mr. Bos
        told me that it was no use in appealing my sentence. I
        repeated to David Bos that I wanted to appeal my
        sentence.

Id. at 5(c).

        At the evidentiary hearing, Soomai presented a different

account of what happened.     He stated that he had a “small

discussion” at counsel table with Bos about the appeal.      Tr. at

7:10.    He then testified that, when Bos visited him at the cell

block, he asked Bos to file an appeal, and Bos responded, “Don’t

worry, I’ll get to it.”     Id. at 8:2-16.    On the stand, Soomai did

not originally mention that Bos had tried to convince him not to

file an appeal.    Cf. Mot. at 5(c) (stating that “Bos told me that

it was no use in appealing my sentence”).       When asked about the

inconsistency in his petition during cross examination, Soomai

then stated that Bos “tried to talk me out of it, but I told him

I needed to do what I wanted to do, but he tried to talk me out

of it.”    Tr. at 19:12-17.   Similarly, in Soomai’s motion, he does

not state that, in response to the request to file an appeal, Bos
                                 - 7 -


replied, “Don’t worry, I’ll get to it.”    See Mot.; Tr. at 19:21-

20:1.    Soomai explained this omission on redirect by stating that

“it wasn’t necessary” to include in his motion.    Tr. at 25:9-19.

        Soomai’s other assertions in his motion reflect additional

inconsistencies.    For example, he argues that he “never agreed in

Court or to the Federal Probation/Parole Officer preparing my

Presentence Investigation Report (‘PSI’) that I was responsible

for the distribution of 150 or more kilograms of cocaine.”     Mot.

at 5a.    However, the plea agreement states, “[t]he [d]efendant

agrees that . . . [he] is accountable for the distribution of 150

kilograms or more of cocaine[.]”    Plea Agreement at 3.   This plea

agreement was signed by Soomai, id. at 12, and he affirmed in it

that he had “read this Plea Agreement and carefully reviewed

every part of it with my attorney,” and that he “fully

underst[ood] and . . . voluntarily agree[d] to” the plea

agreement, id.    Additionally, at the plea hearing, he confirmed

that he “carefully read both the plea agreement and the statement

of facts” and that he understood “the terms of the agreement.”

Pl. Tr. at 28:16-23.    He also confirmed that he signed the

agreement, id. at 29:18-25, and that he did so only after he

read, understood, and agreed with its contents, id. at 30:1-4.

        Soomai also indicates in his motion that he believed he

would receive ten years as a sentence.    At his plea hearing,

Soomai stated that he thought he would face “10 or a little more
                                - 8 -


than 10” years in prison, Plea Tr. 33:8-14, but that Bos

explained that he could be sentenced to “about 200-something

months or something like that,” id. at 33:20-21.     After Bos

supplemented Soomai’s response at the plea hearing, Bos clarified

that the guidelines range was 210 to 262 months, which is

“probably about 18 years,” id. at 34:1-5, and Soomai confirmed

that he heard and understood that clarification, and that it

“accurately reflect[ed] what [Bos] ha[d] explained” to him, id.

at 34:15-20.   Soomai was then informed that he could face “up to

the statutory maximum of life in prison, not just the 262 months

you heard about,” id. at 35:6-7, and he confirmed again that he

understood that, as well as the fact that “the sentence imposed

may be much higher than any estimate that your attorney or the

government has made so far,” id. at 35:10-16, and could be as

high as life in prison, id. at 35:14-16.    At the evidentiary

hearing, however, Soomai asserted that Bos told him he would

receive ten years.   Tr. at 23:14-17.   Soomai also asserted that

he was not aware that the plea paperwork did not say anything

about a promise of ten years.   See Tr. at 24:1-9.    Yet Soomai

confirmed at the plea hearing that no one had “promised or

suggested” that he would be given a lesser sentence, and that no

one has made “any promises . . . as to what sentence” will be

imposed.   Plea Tr. at 37:16-22; see also Plea Agreement at 2-3
                                 - 9 -


(explaining that the sentencing ranges estimated by his attorney

or other parties are “prediction[s]” and “not a promise”).

        Finally, Soomai alleged that he sent three letters to Bos or

his superior, A.J. Kramer -- one handwritten, and two typed.      Tr.

at 8:22-25, 11:20-23, 12:19-21.    Only two letters were produced

in evidence: an August 3, 2009 letter to A.J. Kramer, and a

September 2, 2009 letter to Bos.    Soomai contends that in the

handwritten letter -- sent in January, February or March of 2009,

several months after his sentencing -- he asked Bos about the

appeal.    Soomai did not produce this handwritten letter; rather,

he explained that since he did not think he needed to make a

photocopy of the letter, he no longer has a copy.     Tr. at 9:17-

23.   However, Bos also did not have a copy of this letter in his

file, and did not recall the letter.     Tr. at 36:21-37:16, 38:20-

39:6.    Bos testified that his common practice is, when receiving

a letter from a defendant, to put it into the defendant’s file.

Id. at 38:20-22.    Though this letter may have been probative of

Soomai’s claim, Soomai has provided no evidence about the letter

aside from his assertion that he sent one asking about his

appeal.    Without the text of the handwritten letter, little

weight can be ascribed to the claim that Soomai wrote Bos in

January, February, or March of 2009 asking Bos about the appeal.

        This is particularly so since the two letters that have been

produced do not mention a previous handwritten or first quarter
                                 - 10 -


letter.    In fact, the September 2, 2009 letter begins, “[t]his is

the second letter that I have written to the Office of the

Federal Public Defender for the District of Columbia.”     Defs.’s

Ex. 1.    Soomai then notes that “[t]he first letter was addressed

directly to your boss.”    Id.   Soomai then filed his § 2255 motion

on September 23, 2009, in which he states he has “written letters

to David Bos,” but provides no details as to the content of those

letters or the number of letters.     Mot. at 5c.

        Importantly, neither the August 3 nor September 2 letter

mentions a requested appeal.     Cf. United States v. Carter,

Criminal Action No. 04-155 (GK), 2006 WL 1274784, at *2 (D.D.C.

May 9, 2006) (“[I]f [the defendant] had instructed [counsel] to

file an appeal, it is difficult to believe he would not have

inquired in one of the letters he wrote about its status.”).       In

fact, these two letters only request legal materials from his

case.    These inconsistencies in his testimony, his motion, and

his statements at the plea hearing undermine Soomai’s credibility

and the reliability of his memory.

        Finally, though Bos also has an interest in protecting his

license, Soomai has the greater interest in the outcome of this

case.    Cf. Carter, 2006 WL 1274784, at *3 (in making a

credibility determination, finding that defendant “has every

reason in the world to lie,” that “his testimony was wholly self-

serving,” and that there was no evidence “apart from [the
                               - 11 -


defendant’s] bare assertion” that the defendant requested counsel

to file a notice of appeal).   This interest, in tandem with the

inconsistencies in Soomai’s testimony, undermines the credibility

of Soomai’s testimony.

     At best, the evidence is at equipoise; however, Soomai has

not tipped the scale in his favor and discharged his ultimate

burden of proof.   Accordingly, because Soomai has not carried his

burden to prove by a preponderance of the evidence his claim that

he asked Bos to file a notice of appeal, Soomai has not shown

that Bos rendered ineffective assistance of counsel by failing to

follow Soomai’s explicit directions. 2



     2
       Though Soomai has not demonstrated that Bos’ performance
was deficient because of failure to file a notice of appeal when
directed to, Soomai could nevertheless have a colorable
ineffective assistance of counsel claim if Bos’ performance were
otherwise deficient. See United States v. Taylor, 339 F.3d 973,
977-78 (D.C. Cir. 2003). In a case where there are no specific
appeal instructions one way or the other, courts consider
whether counsel’s failure to consult the client was deficient.
See Taylor, 339 F.3d at 977. “[C]ounsel has a constitutionally
imposed duty to consult with the defendant about an appeal 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.” Flores-Ortega, 528 U.S. at 480. “[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.” Id. “[W]hether 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” are other factors to consider. Id.
                              - 12 -


                            CONCLUSION

     Soomai failed to show that his trial counsel rendered

ineffective assistance of counsel under Strickland and Flores-

Ortega.   Therefore, Soomai’s § 2255 motion will be denied.    A

separate Order accompanies this Memorandum Opinion.

     SIGNED this 5th day of March, 2014.



                               ____________/s/______________
                               RICHARD W. ROBERTS
                               Chief Judge




     Here, Soomai does not argue that Bos rendered ineffective
assistance of counsel for failing to consult him about an
appeal, nor does he present any evidence demonstrating that Bos’
representation was otherwise deficient. In any event, even if
Bos did not consult Soomai about an appeal, that failure was
reasonable. Soomai’s conviction followed a guilty plea, which
“may indicate that the defendant seeks an end to judicial
proceedings.” See Flores-Ortega, 528 U.S. at 480. Soomai also
received a sentence better than one that he bargained for since
his adjusted offense level of 37 was discussed in the plea
agreement, Plea Agreement at 3-4, the sentencing range for that
offense level was 210 to 262 months, Presentence Investigation
Report ¶ 60, and Soomai’s sentence of 151 months was
considerably below this range. Soomai also has not proven that
he indicated a desire to appeal, and given the circumstances,
Bos had no reason to believe that Soomai would want to appeal.
