govinfo:USCOURTS-idd-1_23-cv-00404-0

MEMORANDUM DECISION AND ORDER - 1 
 
 
UNITED STATES DISTRICT COURT 
 
FOR THE DISTRICT OF IDAHO 
 
 
SCOTT ARLIS THOMAS, 
 
 
 Defendant-Movant, 
 
 v. 
 
UNITED STATES OF AMERICA, 
 
 Plaintiff-Respondent. 
 
 
Case Nos. 1:23-cv-00404-BLW 
 1:20-cr-00220-BLW 
 
 
MEMORANDUM DECISION 
AND ORDER 
 
 
 Scott Arlis Thomas (Defendant) filed a Motion to Vacate Sentence under 
28 U.S.C. § 2255. The Court earlier considered the briefing, entered a notice of 
intent to rule on the § 2255 motion, and requested supplementation. Civ. Dkt. 21. 
Defendant’s “Chirp” messages (jail-monitored text messages) and medical records 
from his jail stay were subpoenaed and received. Civ. Dkt. 24, 32. The Court has 
reviewed the parties’ supplements (Dkts. 30, 33, 36, 37) and concludes that the § 
2255 Petition is subject to denial. 
1. Claims Previously Determined to be Subject to Denial 
 
The Court earlier gave the parties notice that the following claims were 
subject to dismissal based on the § 2255 motion, supporting documents, and the 
record in the criminal and civil action: 

 
MEMORANDUM DECISION AND ORDER - 2 
 
• Claim1(A) Unidentified factual mistakes were made at the bench trial, 
causing his plea not to be knowing or voluntary. 
 
• Claim 1(C) There was an agreement that he could appeal the suppression 
motion denial. 
• Claim 1(D) He was threatened with the possibility of increased sentences, 
including consequences of the Payette County case. 
• Claim 1(E). The Court noticed that Defendant was answering questions 
inappropriately, causing the Court to notice something was off or it had a 
bad feeling about Defendant’s answers. 
• Claims 2(A) Ineffective Assistance of Counsel (IAC): Conflict of Interest 
in Federal Defender Services of Idaho (FDSI) office. 
 
• Claim 2(B) IAC: Failure to Investigate Change in Jeffrey Jack Ellis 
testimony about whether Defendant rented garage 5. 
 
• Claim 2(C) IAC: Failure to Correct Factual Mistakes in Presentence 
Report. 
• Claim 2(D) IAC: Failure to Request a § 5K2.12 “Duress” Departure. 
• Claim 3(A)(i) Law Enforcement Misconduct: Payette County Officers. 
• Claim 3(A)(ii) Law Enforcement Misconduct: Search-related Misconduct. 
• Claim 3(A)(iii) Law Enforcement Misconduct: Task Force. 
• Claim 3(A)(iv) Law Enforcement Misconduct: Silencer Testing. 
• Claim 3(B)(i) Prosecutorial Misconduct: Vindictive Superseding 
Indictment. 
• Claim 3(B)(ii) Prosecutorial Misconduct: Eliciting False Testimony. 
• Claim 3(B)(iii) Prosecutorial Misconduct: Failure to Disclose Officer 
Misconduct. 
• Claim 3(B)(iv) Prosecutorial Misconduct: Late Disclosure of Test Results 
and Presenting False Testimony. 
• Claim 3(B)(v) Prosecutorial Misconduct: Vindictive Prosecution re: 

 
MEMORANDUM DECISION AND ORDER - 3 
 
Length of Sentence. 
 
• Claim 4(A): Actual Innocence: Silencer Conviction. 
• Claim 4(B): Actual Innocence: Ammunition Conviction. 
• Claim 5: Equitable Estoppel: Silencer Conviction. 
 
In the supplemental briefing, Defendant provides additional argument on 
his actual innocence claim. Dkt. 33 at 8-15. He argues that “the interpretation of 
the firearm statute is so overbroad and vague that it is unconstitutional.” Actual 
innocence, however, is factual innocence, not legal insufficiency. Bousley v. 
United States, 523 U.S. 614, 623 (1998)). Nothing in his supplement convinces the 
Court that this is a ground for § 2255 relief. 
To the extent Defendant has provided additional argument in support of any 
of these claims, the Court rejects those arguments. For the reasons set forth in the 
Notice of Intent to Rule, the Court denies and dismisses these claims because the 
record conclusively shows that Defendant is not entitled to relief. 
2. Two Remaining Claims 
The parties were ordered to submit additional supporting or rebuttal evidence or 
affidavits to address two ineffective assistance of counsel claims, which they have done. 
The Court has reviewed the supplements. 
A. Standard of Law 
A defendant is entitled to effective assistance of counsel at all “critical stages” of 
the criminal process, including pretrial, arraignments, post-indictment interrogations, 
post-indictment lineups, and the entry of a guilty plea. Missouri v. Frye, 566 U.S. 134, 

 
MEMORANDUM DECISION AND ORDER - 4 
 
145 (2012). “Effective assistance” is defined by Strickland v. Washington, 466 U.S. 668 
(1984). Strickland dictates that, to succeed on an ineffective assistance claim, a petitioner 
must show that (1) counsel’s performance was deficient in that it fell below an objective 
standard of reasonableness, and that (2) the petitioner was prejudiced by the deficient 
performance. Id. at 684. 
In assessing trial counsel’s performance under Strickland’s first prong, a 
reviewing court must view counsel’s conduct at the time that the challenged act or 
omission occurred, making an effort to eliminate the distorting lens of hindsight. Id. at 
689. The court must indulge in the strong presumption that counsel’s conduct fell within 
the wide range of reasonable professional assistance. Id. A petitioner asserting ineffective 
assistance of counsel must show that “counsel made errors so serious that counsel was 
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. 
at 687. 
In assessing prejudice under Strickland’s second prong, a court must find that, 
under the particular circumstances of the case, there is a reasonable probability that, but 
for counsel’s errors, the result of the proceeding would have been different. Id. at 684, 
694. A reasonable probability is one sufficient to undermine confidence in the outcome. 
Id. at 694. 
A petitioner must establish both deficient performance and prejudice to prove an 
ineffective assistance of counsel claim. 466 U.S. at 697. The court may consider either 
prong of the Strickland test first, or it may address both prongs, even if one is deficient 
and will compel denial. Id. 

 
MEMORANDUM DECISION AND ORDER - 5 
 
The Strickland standard is “highly demanding” and requires consideration of 
counsel’s “overall performance throughout the case,” Kimmelman v. Morrison, 477 U.S. 
365, 382; 386 (1986), and “the totality of the evidence before the judge or jury,” 
Strickland, 466 U.S. at 695. 
B. Discussion of COVID-19 Claim 
Claim 1(B) is that Defendant was suffering from the effects of COVID-19 and 
could not think straight during the stipulated trial, causing his agreement to the terms to 
be unknowing and involuntary, but trial counsel failed to take steps to continue the trial 
or do anything else. 
Defendant was represented by attorney Mark Ackley, the first assistant for the 
Federal Defender Service of Idaho (FDSI). See Civ. Dkt. 14-1. As a matter of defense 
strategy, rather than negotiate a plea agreement where Defendant would admit to guilt, 
Mr. Ackley negotiated a stipulation (Dkt. 45) that required the Court to make a ruling that 
Defendant was guilty of the crimes charged based on the parties’ stipulated law and facts 
(“the trial”). As a result of the stipulation, Defendant’s right to appeal any sentence above 
120 months would be preserved, but all other appellate rights (including the motion to 
suppress) would be waived. Dkt. 72 at 6.
1 
The trial was held on January 31, 2022. Dkt. 71. The Court reviews the transcript 
 
1 Originally, the parties agreed that Defendant could appeal the suppression 
issues at the time Defendant entered the Stipulation for the bench trial. However, 
he subsequently reached an agreement with the Government whereby he would 
waive the right to appeal in return for the Government’s agreement to recommend 
concurrent 10 year sentences. When that agreement was put on the record at the 
sentencing hearing, Defendant did not object. Crim. Dkt. 71 at 5-20. 

 
MEMORANDUM DECISION AND ORDER - 6 
 
to determine whether there was evidence that Defendant’s physical health was so bad that 
he could not understand the content of the proceedings. 
When the Court discussed the stipulation with Defendant and asked him if that 
was his understanding of why the trial was being held and what the trial would be about, 
Defendant answered, “Yes, your Honor.” 
Despite this colloquy, Defendant states in his current Affidavit that he “was not 
okay with the stipulations,” and that he “kept wanting to speak up when [he] didn’t agree 
with things, but Mark would pretty much step in whenever I started to.” Civ. Dkt. 33-3 at 
11. But the transcript shows, right at the beginning of the hearing, Defendant stated he 
understood why he was there that day and what they were going to do. The record does 
not reflect that Mr. Ackley consistently interrupted the colloquy with his own agenda or 
at all. The record does not show that Defendant was physically sick, confused, prevented 
from speaking by his attorney, or did not agree with the terms of the stipulation he had 
signed several days earlier when he did not have COVID-19 symptoms. 
The Court asked Defendant whether he understood that he could be prosecuted for 
perjury, if he answered untruthfully. Crim. Dkt. 71 at 3. Defendant answered 
affirmatively. Id. 
It is the Court’s habit to inquire of a litigant whether he desires to proceed with a 
hearing or have it continued if the litigant appears physically ill, confused, or mentally 
incapacitated. The Court did not observe anything in Defendant’s behavior that would 
have caused it to question Defendant’s competence or ability to proceed. Defendant did 
not raise any issue as to his physical health or mental capacity. 

 
MEMORANDUM DECISION AND ORDER - 7 
 
The Court asked Defendant several questions about his competency to proceed. 
The Court asked whether he had taken any drugs that would affect his thought process. 
Defendant stated in his own words why he was there—he knew he was, in effect, 
pleading guilty via the stipulated trial process. Id. at 4-5. Mr. Ackley also stated he had 
no doubt as to his client’s competence to waive his right to a jury trial and proceed to the 
stipulated bench trial. Id. at 5. This is followed by a lengthy colloquy in which the Court 
asked if Defendant was satisfied with his counsel, if he understood the sentencing 
guidelines, the fact that there is no parole, that he was giving up particular constitutional 
rights, and the forfeitures and civil rights deprivations associated with being a convicted 
felon. Defendant consistently answered in the affirmative. This colloquy occupies about 
ten pages of the transcript, and nowhere in that ten pages does Mr. Ackley “cut in and 
basically shut [him] up,” as Defendant now asserts. See Crim. Dkt. 71 at 5-10; Civ. Dkt. 
33-3 at 11. 
Defendant also asserts that his “pause” in responding to the Court’s question about 
property forfeiture during trial is evidence that he was so confused because of his COVID 
condition he could not understand the proceeding. The evidence is to the contrary. First, 
the medical and Chirp records do not show that Defendant was confused or unable to 
think on the date of the trial, but show he carried on reasoned communications with 
recipients of his Chirps. Second, this colloquy was about an ancillary topic—property 
forfeiture. It is implausible that Defendant’s only pause in the proceeding was about 
property forfeiture and not the crime and punishment if he was adamantly opposed to the 
stipulation. Third, the Court gave Defendant three opportunities to clarify or change his 

 
MEMORANDUM DECISION AND ORDER - 8 
 
response, and he did not. 
THE COURT: Do you understand that, by submitting 
facts upon which the Court can find you guilty, you will also 
be forfeiting or agreeing to the forfeiture of certain property 
to the Government as identified in the indictment? 
(Pause.) 
THE DEFENDANT: Yes, Your Honor. 
THE COURT: Do you understand that? 
THE DEFENDANT: Okay. Yes, Your Honor. 
THE COURT: Do you understand that? 
THE DEFENDANT: Yes, Your Honor. 
Crim. Dkt. 71 at 12. 
The Court agrees with the Government that this pause does not mean that 
Defendant was confused or disagreed to the extent that he did not want to continue with 
the stipulation. The Defendant’s subsequent answers, confirmed by the Court twice, 
demonstrate he did understand the forfeiture provision and was not confused by his 
illness to the extent that he could not understand. No parts of the transcripts demonstrate 
confusion or lack of understanding. 
 The record also reflects that Defendant pointed to something in the written 
stipulation and did not say anything, but this, again, does not mean that Defendant was so 
confused he could not even articulate that he needed a continuance. Rather, the record 
reflects that he was simply pointing out something to his attorney. In fact, Mr. Ackley 
immediately raised the issue that Defendant pointed to. Mr. Ackley told the Court that 
they had a question as to whether the ammunition was short or long caliber, and the Court 

 
MEMORANDUM DECISION AND ORDER - 9 
 
clarified that would not make any difference. Crim. Dkt. 71 at 15. 
The Court asked Defendant if that was the reason he hesitated for a moment, and 
Defendant answer, “Well—.” Id. The Court said, “This is your chance. If there is 
anything else in the stipulated facts that you really are struggling with, I think now is the 
time to clarify them.” Id. Defendant carried on regular conversations with Chirp 
recipients before and after the trial (discussed below). Those communications suggest 
that Defendant had the wherewithal to tell the judge exactly what his physical and mental 
status was. Instead of revealing to the Court that he was so physically ill he felt 
incompetent, Defendant replied, “We’re good. I agree with this.” Id. 
 The prosecutor then read the charges to Defendant in open court, and Defendant 
was asked whether he agreed with the facts that he stipulated to, in fact, would establish 
each of those elements of the three charges in the indictment.” Defendant again replied, 
“Yes.” Id. at 18. 
In addition to the stipulated trial transcript, Defendant’s sentencing allocution 
where he effusively praises Mr. Ackley also directly controverts Defendant’s new attempt 
to show that Mr. Ackley forced him to sign the stipulation, knew he was too sick to 
proceed to trial, and “cut him off to shut him up” every time he tried to speak or ask 
questions in court. Months later at sentencing, where Defendant had a clear mind and was 
physically well, he did not raise these issues that allegedly occurred at the stipulated trial. 
Instead, Defendant stated: 
Your Honor, everything that Mark [Ackley] has done 
for me—I mean, I truly love this guy, and you guys got to 
know that, and I just want him to know that and everybody 

 
MEMORANDUM DECISION AND ORDER - 10 
 
here to know that. I didn’t—Mark and I have gone over these 
things, and, you know, this has been a long process. There’s 
things that— and he is right. There is things that—that I have 
in my heart and things that I believe, but we lose. Right. And I 
understand it. I know I’m guilty of this. 
 
Crim. Dkt. 72 at 24-25 (emphasis added). 
Defendant cannot create a dispute of fact by contradicting himself. If Defendant’s 
claims about his physical health made him incompetent to proceed at the stipulated trial, 
he would have said so. If Defendant’s claims about Mr. Ackley were true, Defendant 
certainly would have said something different at the stipulated trial and in allocution. 
Nothing whatsoever in the transcripts supports Defendant’s claims that he was so ill with 
COVID symptoms and his counsel knew he was incompetent as a result, but counsel tried 
to cover up that fact, proceed with the trial on his own agenda, and simply “get away 
from [Defendant], because he was sick.” Civ. Dkt. 33-3 at 11. 
 Against this record, Defendant brings several items to show that he was so ill with 
COVID-19 that he did not understand what was going on at the hearing. Defendant tested 
negative for COVID on January 30, 2022, one day before the hearing, but was told it may 
have been a false negative. He tested positive the day after the hearing, on February 1, 
2022. When tested on February, 1, 2022, his symptoms did not include confusion or lack 
of mental clarity. His symptoms were body aches, chills, “maybe a fever,” a voice that 
was “a little hoarse, and ‘something going on with his heart.’” Civ. Dkt. 33-1 at 2. The 
next day he reported symptoms of a “fluttering heart beat” and was concerned because he 
has a family history of cardiac disease. Id. at 13. The medical provider discussed this 
issue “at length” with Defendant. Id. Nothing shows Defendant did not have the ability 

 
MEMORANDUM DECISION AND ORDER - 11 
 
articulate his problem or understand the discussion a day after the trial. 
 Defendant submitted “Chirps” that he sent near the date of the trial. A sampling of 
messages he sent relevant to the issues at hand are include the following: 
1/28/2022 Defendant says: “My guts feel terrible today. I 
keep having weird dreams. I have court Monday and am a 
little scared. Its just my guilty plea really. Tyler says to me 
that Everything will work out how its suppose to, which he 
got from me so I can’t really argue with it.” 
1/29/2022 Defendant says, “Im getting sick though, maybe 
just a cold in my chest.” 
1/29/2022 Defendant says he hopes he receives a sentence 
of not more than 10 years; he explains about appeals and 
post-conviction actions; he asserts that there are a lot of loose 
ends in his case but that it has dragged on for a long time, that 
he wished his lawyer was “hungry as hell to win,” like he was 
five years ago, and now that he’s the boss, he’s not as good, 
and explains why he was protecting himself against gang 
members by keeping a gun at his shop. 
1/30/2022 “So this time your covid started as a bad sore 
throat? Mine is sore AF now.” 
1/30/2022 “I think I might have covid again. My throat 
started hurting a couple hours ago.” 
1/30/2022 “Now it hurts like a fucker. A lot of units have 
covid here. And my head is pounding…. It’s weird cuz two 
hours ago nothing then all of a sudden My throat and head 
hurt feel bad.” 
1/30/2022 “I feel crappy but maybe its something else. 
That’s what my throat feels like.” 
1/30/2022 “The test came back negative but they said if its 
early they will be wrong sometimes….Im starting to get sick 
now. Im sure by tomorrow I will be worse.” 
1/31/2022 Before the sentencing hearing, Defendant 
wrote, “Good morning. I feel fucking terrible this morning. 

 
MEMORANDUM DECISION AND ORDER - 12 
 
Its gonna be a rough fucking day at court. I love you have a 
good day. I feel like shit this morning. Its gonna be a rough 
day in court. Have a good day.” 
1/31/2022 After the sentencing hearing, Defendant 
explained the complicated stipulated guilty plea process to the 
message recipient and suggested that she Google “affirmative 
defenses, imperfect self defense and justification defenses” so 
that she could “understand kinda what we are going to argue 
[on appeal].” 
1/31/2022 Later that night, Defendant complained of chills 
and that he was “so fucking sick.” He carried on lengthy 
conversations with “Micki” and “Susan”; neither 
conversation showed he had any signs of being mentally 
incompetent. 
Civ. Dkt. 33-2. Clearly, Defendant could have stated as much to the judge on January 30, 
2022. 
The record definitively demonstrates that Defendant was not so sick with COVID 
on the day of the trial that he was incoherent, incompetent, or was not acting knowingly 
intelligently, and voluntarily. He acted coherently in trial, and he clearly reasoned and 
communicated with Chirp recipients before and after trial. There is no doubt he suffered 
from a respiratory illness and a headache, but those symptoms did not affect his ability to 
understand and make decisions about the stipulated trial subject matter. Defendant asserts 
that, in general, COVID-19 patients suffer can suffer from “‘Brain Fog,’ disorientation, 
and mental confusion.” Dkt. 37 at 3. The record shows Defendant did not suffer from 
these particular conditions at trial, but that he had physical symptoms only. 
Further, it is not just Defendant’s performance at the trial that matters, but whether 
he was so sick when he signed the written stipulation on January 25, 2022, that he was 

 
MEMORANDUM DECISION AND ORDER - 13 
 
legally incoherent. Civ. Dkt. 45. 
The Court now reviews the evidence in the record showing Defendant’s mental 
capacity and physical health during the time frame when he signed the written stipulation 
on January 25, 2022. In his Affidavit, Defendant states that he “was not feeling very well 
with stomach problems and stress at the time.” Civ. Dkt. 33-3 at 10. Mr. Ackley, Ted 
Brown (Mr. Ackley’s associate), and Defendant discussed the facts and the stipulation in 
a heated argument. Id. Defendant states, “Ultimately, [Mr. Ackley] convinced me to sign 
the paper because it was the only way we could appeal, and he would go talk to the 
prosecutor then get back to me the next day.” Id. at 10. Nothing in the record at the time 
of the signing of the written stipulation shows that Defendant was too ill to comprehend 
the agreement—in fact, his description of the things that he and counsel argued over 
show that he understood what was happening. See id. Nor does anything show that Mr. 
Ackley coerced Defendant to sign the written stipulation. 
In the many months between the stipulated trial on January 30, 2022, and 
sentencing on August 17, 2022 (long after Defendant recovered from COVID), he did not 
file a motion to set aside the bench trial conviction on the basis of his temporary 
incompetence because of the illness. He did nothing to bring this issue to the attention of 
the Court. Rather, he proceeded to the sentencing. 
At sentencing, Defendant did not say anything about having been ill with COVID 
and consequently being incompetent at the bench trial. He did not raise any of the 
problems with his counsel that he raises in this case. Rather, as noted above, he highly 
praised Mr. Ackley’s work and acknowledged that, even though in his heart he disagreed 

 
MEMORANDUM DECISION AND ORDER - 14 
 
with the silencer charge, he knew the stipulation was appropriate under the 
circumstances. 
Finally, the Government raises the legal issue that Defendant cannot contest the 
voluntariness of his stipulation as if it were a guilty plea—either as a stand-alone § 2255 
claim or as the basis for an ineffective assistance of counsel claim. The Government is 
correct that the constitutional protections mandated by Federal Criminal Procedure Rule 
11, including a probe of whether a guilty plea is voluntary, do not apply in these 
circumstances. See United States v. Schuster, 734 F.2d 424, 425 (9th Cir. 1984) (per 
curiam) (holding that a plea of not guilty combined with a stipulation of facts sufficient to 
establish guilt does not constitute a de facto guilty plea and therefore does not implicate 
the procedural protections of such a plea), cert. denied, 469 U.S. 1189 (1985); United 
States v. Miller, 588 F.2d 1256, 1263–64 (9th Cir. 1978) (the requirements of Rule 11 are 
“applicable only to guilty pleas (or pleas of Nolo contendere ) and not to stipulations.”), 
cert. denied, 440 U.S. 947 (1979). In fact, the parties’ own written stipulation 
acknowledged: “A trial judge need not make as probing an inquiry as is required by Fed. 
R. Crim. P. 11 when considering whether a defendant’s factual stipulation is knowing and 
voluntary.” Crim. Dkt. 45 at 12. The Court agrees that Rule 11 does not apply, but 
regardless, the record contains ample evidence to show that voluntariness was adequately 
probed and the stipulation was voluntary. 
This ineffective assistance claim is subject to denial based on insufficient evidence 
in the record to support either the deficient performance or prejudice prong. 
 

 
MEMORANDUM DECISION AND ORDER - 15 
 
C. Discussion of Direct Appeal Claim 
Defendant asserts he asked Mr. Ackley to file an appeal, but Mr. Ackley 
“wouldn’t.” Civ. Dkt. 1-1 at 7. Ineffective assistance of counsel claims for failure to file a 
notice of appeal are evaluated under the Strickland test, Roe v. Flores-Ortega, 528 U.S. 
470, 477 (2000), but the prejudice prong is different. In a case “where a defendant 
specifically instructs counsel to file a notice of appeal, failure to do so constitutes 
ineffective assistance of counsel, and the lost chance to appeal constitutes prejudice. 
United States v. Sandoval-Lopez, 409 F.3d 1193, 1196-98 (9th Cir. 2005). This is so even 
if a defendant waives his right to appeal, id. at 1197, and even if filing an appeal could be 
a breach of the plea agreement. Garza v. Idaho, 586 U.S. 232, 241, 244 (2019). 
After executing the original Stipulation (which preserved his right to appeal), 
Defendant entered into a second agreement, this time waiving his appeal rights in 
exchange for a 10-year recommendation at sentencing. The parties made the waiver clear 
on the record at the beginning of the sentencing hearing. Crim. Dkt. 72 at 5-7. Defendant 
specifically affirmed the appellate waiver during his allocution, stating that the purpose 
of waiving his appeal was to have as much time with his elderly father as he could under 
the stipulation for a 10-year sentence. Crim. Dkt. 72 at 27. 
In support of Mr. Ackley’s position that he did not file a notice of appeal because 
Defendant did not specifically instruct him to do so after they had a discussion, Mr. 
Ackley declares he knew he had an ethical obligation and his office had a practice to file 
a notice of appeal—regardless of whether the client waived that right in an agreement 
with the Government—if the client insisted on filing an appeal despite Mr. Ackley’s 

 
MEMORANDUM DECISION AND ORDER - 16 
 
advice not to appeal. Civ. Dkt. 14-1 at 10. 
 Sentencing in this case occurred on August 17, 2022, which means the deadline 
for filing a notice of appeal was 14 days later, on August 31, 2022. It is undisputed that, 
on August 29, 2022, two days before the appeal deadline, Defendant left a voicemail 
message directing Mr. Ackley to file a notice of appeal. Civ. Dkt. 14-1 at 9. 
Mr. Ackley listened to the message on August 30, 2022. Recognizing his 
obligation to file a timely notice of appeal even though he believed filing a notice of 
appeal “would be a disaster” (Civ. Dkt. 30-2 at 11), via e-mail he directed his staff to 
draft the notice of appeal and take steps to schedule a visit with Defendant. Also on that 
date, Mr. Ackley instructed staff to file the notice of appeal as a precautionary filing. Civ. 
Dkt. 14-1 at 10. 
Knowing that the filing of a notice of appeal would be a breach of the Stipulation 
and to protect Defendant, Mr. Ackley also took the extraordinary step of writing an email 
to the prosecutor, stating that he would file a notice of appeal unless he heard otherwise 
from Defendant, but that Mr. Ackley may still withdraw the notice after speaking with 
Defendant about the cons of appealing. Civ. Dkt. 30-2 at 9. 
On August 31, 2022, the deadline, Mr. Ackley and Defendant conferred by 
telephone. Mr. Ackley advised Defendant not to file a notice of appeal, “considering the 
sentencing agreement, the appellate waiver, the potential consequences of the breach, and 
the chances of success on appeal.” Dkt 14-1 at 10. Mr. Ackley declares that his 
“contemporaneous notes and subsequent email to staff” confirm that Defendant agreed to 
follow his advice. Id.; Civ. Dkt. 30-1 at 2. 

 
MEMORANDUM DECISION AND ORDER - 17 
 
 The parties were ordered provide supplementation of the facts. Mr. Ackley 
clarified that: “By the end of my conversation with Mr. Thomas, I have zero doubt that he 
agreed not to pursue an appeal. Bottom line: I provided him my advice, but this was his 
decision.” This is corroborated by an email Mr. Ackley sent to his staff on August 31, 
2022, at 1:47 p.m., stating, “I spoke to Scott by phone and he agreed not to file a notice of 
appeal. So no notice of appeal.” (emphasis in original).” Civ. Dkt. 30-1 at 3. 
Mr. Ackley also recalls that Defendant’s decision not to file an appeal was in part 
due to Mr. Ackley’s promise to try to help him in another way, such as trying to help him 
received credit for time served. That is documented in an email to staff. Dkts 30-1 at 3; 
30-2 at 10. Defendant’s Affidavit corroborates that the credit for time served issue was 
the only reason he would have appealed. Civ. Dkt. 33-3 at 12-13. Defendant states that, 
because the presentence investigation report was incorrect regarding whether he was on 
state parole at the time of his federal arrest, his reasoning was that if he did not appeal, 
his sentence would be over 144 months, not 120 months, if he did not get credit for his 
jail time. Dkt. 33 at 7. Mr. Ackley’s recollection is supported by the supplemental emails. 
In addition, his recollection is supported by his personal and office policy that, “[i]f Mr. 
Thomas had insisted that he wanted an appeal despite my advice, then consistent with his 
right, my office’s practice, and my ethical obligations, I would have filed a notice of 
appeal on a theory that the waiver was somehow invalid, as my office has done on rare 
occasions.” Dkt. 14-1 at 10. 
Defendant’s supplemental clarification does not state that he is certain he told Mr. 
Ackley to appeal. Rather, Defendant states that he is certain he told Mr. Ackley to try to 

 
MEMORANDUM DECISION AND ORDER - 18 
 
fix the parole credit for time served issue another way. Defendant states that, during a last 
phone call with Mr. Ackley, “I’m sure I told him to try to fix it another way, but I’m also 
sure that I expected the Notice of Appeal to state in place until it was fixed. When I hung 
up with him, that was what I thought was happening, from what I remember.” 
Defendant’s statements that “I expected” and “what I thought was happening, from what 
I remember” does not show that he instructed Mr. Ackley to file or pursue the notice of 
appeal. Further, Defendant did not follow up his conversation with Mr. Ackley with a 
letter inquiring about the status of the appeal, a bar complaint, a letter to the court, a 
motion requesting permission to file a late appeal, or anything whatsoever that supports 
his vague contention that he “expected” an appeal. 
Defendant has not clearly declared under oath he told Mr. Ackley not to appeal. 
He clearly declared he told Mr. Ackley to find another way. That “other way” existed and 
has been realized in this action. Mr. Ackley correctly advised Defendant that there was 
another way—rather than breaching his plea agreement and jeopardizing his 120-month 
concurrent sentence—to fix the parole credit for time served issue. Mr. Ackley did not 
perform deficiently, but extraordinarily under the circumstances, by notifying staff and 
even the prosecutor of the possible impending appeal that might constitute a breach of the 
parties’ Stipulation. Because Defendant’s current contention is contrary to the entire 
record, no further evidentiary development is necessary, and this claim will be denied. 
 

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