Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 96-00745-George W. White, Chief District Judge.
Before: Norris, Batchelder, and Bright, *fn1 Circuit Judges.
The opinion of the court was delivered by: Alan E. Norris, Circuit Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 24
Submitted: September 24, 1998
In 1992 Thomas Ludwig pleaded guilty to several counts of a thirty-eight count indictment that charged him, his wife, and daughter with drug trafficking, money laundering, and tax evasion. He now appeals the district court's denial of his motion to vacate his sentence, filed pursuant to 28 U.S.C. § 2255. We vacate the district court's decision and remand for rehearing to determine whether petitioner asked counsel to perfect an appeal in this case.
According to the count of the indictment to which petitioner pleaded guilty, he and his family engaged in a conspiracy to manufacture and distribute methamphetamine from approximately 1985 to 1991. He also pleaded guilty to six counts of tax evasion, 26 U.S.C. § 7201, for failure to pay income tax between 1985 and 1990 despite the fact that he earned approximately $991,100,000 during that period.
Indicted in March 1992, petitioner entered into a plea agreement the following July. In addition to entering pleas on the seven counts just mentioned, petitioner agreed to forfeit considerable property to the government in exchange for a recommendation that he receive a two-point reduction for acceptance of responsibility and a sentence at the lower end of the guidelines' range. The district court ultimately sentenced petitioner to 121 months of imprisonment and three years of supervised release. *fn1
A change of plea hearing occurred on July 13, 1992. During the hearing, petitioner acknowledged a number of things, including that he was under oath, he was waiving his right to a trial, he had not taken any drugs or alcohol for twenty-four hours, he had discussed the plea with his counsel and was satisfied with the representation, and he understood the plea agreement. The court then read the counts of the indictment to which petitioner chose to plead guilty and petitioner indicated that he was guilty as charged.
Petitioner took no direct appeal. In 1996, however, he filed a motion to vacate for several reasons: 1) certain evidence seized from his California home should have been suppressed prior to his guilty plea; 2) the Speedy Trial Act was violated; 3) he was not competent to enter a plea; 4) there was an inadequate factual basis for his plea; and 5) he received ineffective assistance of counsel.
The district court denied these claims, basing its decision in large part upon petitioner's failure to raise the issues either in the ...