USA v. Colding et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States v. Colding
Case No. 3:17-cr-00054-TMB
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
The matter comes before the Court on Petitioner Matthew Adrian Colding’s Motion to Expand the
Record (the “Motion”) pursuant to Rule 7 of the rules governing 28 U.S.C. § 2255 proceedings.1
The Motion is unopposed. The matter is now ripe for resolution by the Court.
On May 18, 2017, Colding was indicted for a violation of 18 U.S.C. § 922, possession of a firearm
by a felon.2 He pleaded not guilty.3 On August 3, 2017, Colding changed his plea to guilty pursuant
to a Plea Agreement with the Government.4 In the Agreement, Colding purported to “waive all
rights to appeal the conviction and sentence imposed under this agreement and will waive all rights
to collaterally attack the conviction and sentence, except on the grounds of ineffective assistance
of counsel or the voluntariness of the plea(s).”5 The Court entered its judgment on August 20,
2018, sentencing Colding to 120 months’ incarceration, followed by three years of supervised
release.6
On April 10, 2019, Colding filed a Motion to Vacate his sentence under 28 U.S.C. § 2255,7
asserting his trial counsel was deficient in violation of his Sixth Amendment rights.8 Specifically,
Colding claims that his trial counsel failed to correct alleged misstatements by the Court regarding
the effect of the appeal waiver in the Plea Agreement.9 Additionally, he claims that his trial counsel
was deficient for failing to file a notice of appeal despite the appeal waiver in his plea agreement.10
The Government opposed the Motion to Vacate.11 In its Response, the Government argues that the
Court made no misstatements at the plea hearing.12 The Government further claims that Colding’s
1 Dkt. 165 (Motion).
2 Dkt. 22 at 2 (Indictment).
3 Dkt. 32.
4 Dkts. 42 (Plea Agreement), 49 (Change of Plea Minute Entry).
5 Dkt. 42 at 2.
6 Dkt. 116 (Judgment).
7 Dkts. 146 (Motion to Vacate), 147 (Memorandum).
8 Dkt. 147 at 6–12.
9 Id. at 6–11.
10 Id. at 11–12.
11 Dkt. 158 (Response in Opposition)
12 Id. at 10.
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counsel cannot be said to be deficient where there is “not a scintilla of evidence petitioner requested
an appeal.”13
Colding’s Motion now seeks to expand the record to include an email from his trial counsel, Darrel
Gardner, in which Attorney Gardner states that he did not find “any indication that [Colding] ever
asked [Attorney Gardner] about filing an appeal.”14 The Court requested the Government to
respond to the Motion.15 The Government did not oppose the Motion. 16
Rule 7(a) of the Rules Governing § 2255 Actions permits courts considering a motion to vacate
under § 2255 to “direct the parties to expand the record by submitting additional materials relating
to the motion.” Materials that may be added include “letters predating the filing of the motion,
documents, exhibits, and answers under oath to written interrogatories propounded by the judge.”17
Under Local Rule 7(b) if the petition requests the record be expanded, “[t]he petitioner must file a
motion for expansion of the record not later than twenty-one (21) days after the answer is served
and filed by the respondent.” The motion must be accompanied by the materials requested to be
included in the record.18
Colding’s Motion is timely and includes the documents to be included.19 Further, the Court finds
that Gardner’s statements regarding whether Colding requested an appeal—although perhaps not
dispositive under recent developments in the law20—is relevant to the substance of Colding’s
ineffective assistance of counsel claim.
Accordingly, the Petitioner’s Motion to Expand the Record is GRANTED. The Court will
consider the exhibit attached at docket 165-1 as part of the record in assessing Colding’s Motion
to Vacate.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: September 6, 2019
13 Id. at 12–14.
14 Dkt. 165.
15 Dkt. 166 (Order).
16 Dkt. 167 (Response in Non-Opposition).
17 7(b) Rule Governing § 2255 Actions.
18 D.Ak. HCR 7(b)(3).
19 Dkts. 165 and 165-1.
20 Garza v. Idaho, 139 S. Ct. 738 (2019); United States v. Fabian-Baltazar, 931 F.3d 1216 (9th
Cir. 2019). A reading of Garza and Fabian-Baltazar suggests that even where a defendant has
signed an appeal waiver as part of a plea agreement and a defendant has not requested that their
counsel file an appeal, counsel may still be ineffective if they do not consult with defendant about
an appeal. Therefore, evidence that Colding never requested an appeal neither proves nor defeats
his ineffective assistance claim. Instead, under a plausible reading of the Garza line of cases it
highlights the need to determine whether his trial counsel consulted with Colding about whether
or not he wanted to appeal.
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