US v. Isabel Gonzalez
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:00-cr-00077-BO-1,5:02-cv-00726-BO Copies to all parties and the district court/agency. [999350514].. [12-6941]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6941
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ISABEL GONZALEZ, a/k/a Chabello, a/k/a Isabel Garcia,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:00-cr-00077-BO-1)
Argued:
March 19, 2014
Decided:
May 6, 2014
Before MOTZ, KING, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, PSC,
Covington, Kentucky, for Appellant. Seth Morgan Wood, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellant
prisoner,
alia,
filed
that
he
a
Isabel
28
Gonzalez
U.S.C.
received
(“Appellant”),
§ 2255
ineffective
motion
a
federal
contending,
assistance
of
inter
counsel,
including claims that his trial counsel failed to file a direct
appeal following his sentencing and failed to properly counsel
him regarding an appeal.
The district court denied relief, and
we granted a certificate of appealability.
court
failed
to
consider
Appellant’s
Because the district
claim
that
he
received
ineffective assistance of counsel due to his trial counsel’s
alleged failure to counsel him regarding an appeal, we remand
the case with instructions to the district court to address this
allegation.
I.
A.
On January 11, 2001, Appellant pled guilty, pursuant
to a written plea agreement, to conspiracy to import at least
five kilograms of cocaine, in violation of 21 U.S.C. §§ 952 and
963.
Appellant’s written plea agreement contained a standard
appellate waiver, in which Appellant agreed
[t]o waive knowingly and expressly the right
to appeal whatever sentence is imposed,
including any issues that relate to the
establishment
of
the
Guideline
range,
reserving only the right to appeal from an
upward departure from the Guideline range
that is established at sentencing, and
2
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further to waive all rights to contest the
conviction
or
sentence
in
any
postconviction
proceeding,
including
one
pursuant to 28 U.S.C. § 2255, excepting an
appeal or motion based upon grounds of
ineffective
counsel
or
prosecutorial
misconduct not known to the defendant at the
time of the defendant’s guilty plea.
J.A.
17-18,
¶ c. 1
On
October
2,
2001,
the
district
court
sentenced Appellant to 365 months imprisonment, the top of the
applicable United States Sentencing Guideline range, and five
years of supervised release.
Appellant did not directly appeal.
B.
Appellant filed his initial motion for post conviction
relief, pursuant to 28 U.S.C. § 2255, on October 3, 2002.
the
filing
of
that
procedural history.
motion,
this
case
has
had
a
Since
protracted
In his initial § 2255 motion, Appellant
alleged ineffective assistance of counsel, namely that counsel
failed
to
file
a
requested
notice
of
appeal
and
erroneously
advised him that he had no right to file an appeal.
Without
holding a hearing, the district court granted the Government’s
motion to dismiss, finding that Appellant waived his right to
file a § 2255 motion in his plea agreement and had offered no
evidence negating the voluntary nature of his plea.
We granted
Appellant a certificate of appealability and ultimately remanded
1
Citations to the Joint Appendix (“J.A.”) refer to the
Joint Appendix filed by the parties in this appeal.
3
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the case to the district court for consideration of Appellant’s
ineffective assistance of counsel claims.
See United States v.
Gonzalez, 97 F. App’x 447 (4th Cir. 2004) (per curiam).
On remand, the district court held what it described
as
a
“motions
questioned
hearing”
Appellant
on
and
December
17,
trial
counsel
his
2004,
at
under
which
oath
Appellant’s claims of ineffective assistance of counsel.
it
about
The
district court denied Appellant’s request for appointed counsel
to represent him at that hearing.
Following that hearing, the
district court entered an order on January 14, 2005 (“January
14, 2005 Order”), denying Appellant’s § 2255 motion.
22,
2005,
district
Appellant
court’s
filed
January
a
notice
14,
seeking
2005
Order.
to
We
On July
appeal
the
dismissed
Appellant’s appeal for lack of jurisdiction because the notice
of appeal was not timely filed.
See United States v. Gonzalez,
179 F. App’x 174 (4th Cir. 2006) (per curiam) (explaining that a
notice of appeal must be filed within 60 days after the entry of
the
district
court’s
final
judgment,
and
here,
Appellant’s
notice of appeal was filed more than six months after the entry
of final judgment).
On October 20, 2006, Appellant filed a pro se motion
for relief from the district court’s January 14, 2005 Order,
pursuant
to
Rule
60(b)(1)
of
the
Federal
Rules
of
Civil
Procedure, which allows the court to grant relief for reasons of
4
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“mistake,
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inadvertence,
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surprise,
or
excusable
neglect,”
provided that the motion is made “no more than a year after the
entry
of
the
judgment.”
Fed.
R.
Civ.
P.
60(b)(1),
(c)(1).
Appellant sought leave to appeal the denial of his § 2255 motion
on the grounds that he was improperly denied the assistance of
counsel
at
the
December
17,
2004
evidentiary
hearing.
He
alleged that his failure to note a timely appeal was “excusable
neglect” under Rule 60(b)(1) because he did not receive notice
of the court’s January 14, 2005 Order until June 10, 2005.
The
district court concluded that it was without jurisdiction to
extend the time to appeal and denied the motion, and we denied a
certificate of appealability and dismissed Appellant’s appeal.
See United States v. Gonzalez, 256 F. App’x 591 (4th Cir. 2007)
(per curiam).
On March 18, 2010, Appellant filed another motion for
relief from the district court’s January 14, 2005 Order, this
time pursuant to Rule 60(b)(6), which allows relief for “any
other reason that justifies relief.”
Appellant
maintained
that
he
was
Fed. R. Civ. P. 60(b)(6).
improperly
denied
appointed
counsel for the hearing on December 17, 2004, in violation of
Rule 8 of the Rules Governing § 2255 Proceedings for the United
States District Courts.
The district court denied the motion as
untimely because it was filed more than five years after the
court’s order dismissing Appellant’s § 2255 motion.
5
Appellant
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appealed, arguing that he diligently pursued his claim and filed
within a reasonable time.
Again, we denied a certificate of
appealability and dismissed the appeal.
See United States v.
Gonzalez, 407 F. App’x 705 (4th Cir. 2011) (per curiam).
C.
This matter comes before us again via the district
court’s ruling on Appellant’s third motion filed pursuant to
Rule 60(b) of the Federal Rules of Civil Procedure.
15,
2011,
January
Appellant
14,
2005
moved
Order
the
as
district
void,
this
court
time
to
On August
vacate
pursuant
to
the
Rule
60(b)(4), which allows for relief from a final judgment, order,
or proceeding based on a finding that the “judgment is void.”
Fed. R. Civ. P. 60(b)(4).
Appellant argued that because he was
deprived of appointed counsel at the December 17, 2004 hearing,
he was deprived of due process, and thus, the district court’s
judgment was void.
hearing
should
After concluding that the December 17, 2004
have,
in
fact,
been
characterized
as
an
“evidentiary hearing” and Appellant should have been appointed
counsel,
September
the
28,
district
2011,
court
that
it
determined
would
in
“again
an
hold
order
a
issued
hearing
to
determine the validity of [Appellant’s] claims of ineffective
assistance of counsel.”
setting
an
J.A. 269.
evidentiary
hearing
6
After appointing counsel and
--
essentially
granting
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Appellant’s requested relief -- the district court then denied
Appellant’s Rule 60(b)(4) motion as “moot.”
J.A. 270.
Appellant’s new counsel then filed a “Memorandum of
Law in Support of Claim Relating to Failure to File Notice of
Appeal.”
J.A.
271.
In
that
memorandum,
Appellant
alleged,
among other claims, that his trial counsel failed to file a
requested notice of appeal and “failed to properly consult with
him regarding an appeal when a rational defendant would want to
appeal, and when he had reasonably demonstrated to counsel that
he was interested in appealing.”
J.A. 272.
The district court
conducted an evidentiary hearing on April 10, 2012.
During this
hearing, both Appellant and his trial counsel again testified
under oath.
Trial
counsel
testified
that
Appellant
specifically
instructed her that he wished to cooperate, and she understood
that pursuing an appeal would be contrary to Appellant’s stated
desire to cooperate with authorities.
specifically
recall
discussing
an
Trial counsel did not
appeal
with
Appellant
following his sentencing hearing, but noted that per her regular
practice, she
would have told him when I went back to see
him on that day that if he wanted to appeal
that
he
could,
but
if
he
wanted
to
cooperate, then I would advise him against
appealing, as well as the fact that his plea
agreement had an appeal waiver in it.
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J.A. 319.
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Trial counsel further testified, however, that she
would not have discussed in any detail the possible advantages
and disadvantages to entering a notice of appeal.
Appellant testified that he never saw trial counsel
after his sentencing hearing.
He further testified that he had
a fellow inmate draft a letter on his behalf which Appellant
sent to trial counsel asking her to come see him.
According to
Appellant, it was his intention to talk to her about an appeal,
but trial counsel never responded.
submit
a
copy
examination,
the
of
the
letter
Government’s
Although Appellant did not
for
counsel
the
record,
read
a
on
portion
cross
of
the
transcript from the first evidentiary hearing on December 17,
2004, where Appellant’s trial counsel had read the letter into
evidence. 2
2
Appellant claimed he didn’t “know what the man put in
Government’s counsel stated,
That letter read, my name is Isabel Gonzalez
Garcia.
I got sentenced the other day.
I
would like to now [sic] how much my fine is
and I would like you there when I get the
brief
please.
Before
they
say
my
cooperation is no good.
I need you there.
When they come back, please see me so you
can tell me everything just for about 15
minutes. I don’t know if they are going to
send me back to Texas. I don’t know if they
are going to give me drug program. A lot of
things I don’t understand.
Please come and
see me.
J.A. 337.
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the letter,” but the purpose was to have trial counsel come and
see him.
J.A. 337.
Appellant also averred that he told his
trial counsel that he wanted to appeal because she promised him
that if he took a guilty plea he would be sentenced to only 14
years in prison.
According to Appellant, trial counsel stated
that he could not appeal because he had waived his right to do
so,
and
that
he
could
only
raise
ineffective
assistance
of
counsel, which she would not pursue on his behalf. 3
Following this evidentiary hearing, the district court
again dismissed Appellant’s § 2255 motion.
dismissal
order
Appellant’s
claim
(“May
of
15,
2012
ineffective
In its May 15, 2012
Order”),
with
assistance
of
regard
counsel
to
for
failure to file a direct appeal, the district court found,
[Appellant] did not call [trial counsel] to
request an appeal, nor did her [sic] write
her a letter unequivocally stating that he
wished to file an appeal.
Accordingly,
in
light
of
[trial
counsel’s]
testimony
and
[Appellant’s]
failure to present any evidence to the
contrary, the Court finds that [Appellant]
did not make an unequivocal request to
counsel
to
notice
a
direct
appeal.
[Appellant’s]
claim
for
ineffective
assistance as to this matter must therefore
fail.
3
It is unclear from the record before us exactly when this
alleged conversation took place.
9
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J.A. 343.
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The district court made no findings, however, as to
whether Appellant’s trial counsel was ineffective for allegedly
failing to counsel Appellant regarding an appeal.
We
following
granted
a
issues:
certificate
(1)
whether
of
appealability
the
district
on
the
court
had
jurisdiction to reopen its 2005 denial of Appellant’s § 2255
motion;
and
(2)
whether
Appellant’s
trial
counsel
was
ineffective in allegedly failing to counsel him regarding an
appeal.
Both Appellant and the Government agree the district
court had jurisdiction to reopen its 2005 denial of Appellant’s
§ 2255 motion pursuant to Rule 60(b) because Appellant’s Rule
60(b)(4) motion challenged a defect in the collateral review
process, and therefore, was not a successive § 2255 motion.
parties
also
agree
that
the
district
court
did
not
The
address
whether Appellant’s trial counsel was ineffective in allegedly
failing to counsel Appellant regarding an appeal in the May 15,
2012 Order.
Appellant next argues that his trial counsel was
ineffective because the record demonstrates that he showed an
interest
in
appealing,
regarding an appeal.
but
counsel
failed
to
consult
him
The Government contends, however, that
Appellant’s trial counsel was not ineffective.
According to the
Government, the district court in its May 15, 2012 Order found
that Appellant did not unequivocally express a desire to appeal
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to trial counsel.
coupled
with
Appellant
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The Government further contends that finding,
trial
counsel’s
regarding
an
testimony
appeal,
is
that
enough
she
for
did
us
counsel
to
conclude
trial counsel was not ineffective.
II.
The
whether
jurisdictional
Appellant’s
presented
60(b)(4)
Rule
issue
motion
by
this
should
case
have
--
been
treated as a successive § 2255 motion -- is one that we review
de novo.
See United States v. MacDonald, 641 F.3d 596, 609 (4th
Cir. 2011).
However, “[d]istrict court decisions granting or
denying Rule 60(b) relief are reviewed for abuse of discretion,
although the exercise of discretion cannot be permitted to stand
if we find it rests upon an error of law.”
United States v.
Winestock, 340 F.3d 200, 204 (4th Cir. 2003) (internal quotation
marks omitted).
In our consideration of the district court’s dismissal
of Appellant’s § 2255 motion, we review the district court’s
legal conclusions de novo and its findings of fact for clear
error.
United States v. Fisher, 711 F.3d 460, 464 (4th Cir.
2013).
“We review de novo mixed questions of law and fact
addressed
by
the
district
court
--
including
the
issue
of
whether a lawyer’s performance was constitutionally adequate.”
United
States
v.
Roane,
378
F.3d
(emphasis supplied).
11
382,
395
(4th
Cir.
2004)
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III.
A.
We first address whether the district court possessed
jurisdiction to reopen its 2005 denial of Appellant’s § 2255
motion.
the
It is undisputed that this matter found its way before
district
court
60(b)(4) motion.
again
via
Appellant’s
filing
of
a
Rule
Although in its September 28, 2011 order the
district court stated it was denying Appellant’s Rule 60(b)(4)
motion as moot, the district court, in fact, granted Appellant
the relief he requested, by holding another evidentiary hearing
with appointed counsel, thereby implicitly granting Appellant’s
motion.
The
district
court
provided
no
other
basis
for
reopening its January 14, 2005 final judgment in Appellant’s
§ 2255
proceeding.
Therefore,
to
establish
jurisdiction,
we
must consider whether a Rule 60(b) motion was the proper vehicle
to reopen the matter. 4
It is well settled law that a district court lacks
jurisdiction over a successive § 2255 motion unless this court
authorizes such a filing.
See United States v. Winestock, 340
4
We
recognize
that
the
Government
has
conceded
jurisdiction.
See Appellee’s Br. 17, 20.
However, because
“subject-matter jurisdiction can never be forfeited or waived;
it involves a court’s power to hear a case,” we pause to assure
ourselves of jurisdiction in this case.
United States v.
Hartwell, 448 F.3d 707, 715 (4th Cir. 2006) (internal quotation
marks omitted).
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F.3d 200, 205-06 (4th Cir. 2003).
“[D]istrict courts must treat
Rule 60(b) motions as successive collateral review applications
when failing to do so would allow the applicant to evade the bar
against relitigation of claims presented in a prior application
or the bar against litigation of claims not presented in a prior
application.”
emphasis
should
in
“be
Id. at 206 (internal quotation marks omitted,
original).
treated
However,
as
not
successive
all
Rule
60(b)
applications;
motions
instead,
the
proper treatment of the motion depends on the nature of the
claims
presented.”
Id.
at
206-07.
Although
there
is
“no
infallible test” for determining when a Rule 60(b) motion should
be
treated
as
a
successive
application,
“a
relatively
straightforward guide is that a motion directly attacking the
prisoner’s
conviction
or
sentence
will
usually
amount
to
a
successive application, while a motion seeking a remedy for some
defect in the collateral review process will generally be deemed
a proper motion to reconsider.”
Id. at 207.
Appellant’s Rule 60(b)(4) motion challenged his lack
of appointed counsel to represent him at the December 17, 2004
hearing, during which evidence was adduced in consideration of
his § 2255 motion.
Rule 8(c) of the Rules Governing § 2255
Proceedings for the United States District Courts states, “[i]f
an evidentiary hearing is warranted, the judge must appoint an
attorney to represent a moving party who qualifies [as indigent]
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under 18 U.S.C. § 3006A.”
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Rule 8(c) of the Rules Governing
§ 2255 Proceedings (emphasis supplied).
“[A]ll of our sister
circuits that have considered the issue have held that Rule 8(c)
requires the court to appoint counsel for indigent petitioners
if it holds a § 2255 evidentiary hearing, and the failure to do
so constitutes structural error requiring automatic vacatur or
reversal.”
Bucci v. United States, 662 F.3d 18, 34 (1st Cir.
2011) (following the other circuits and concluding the indigent
defendant was entitled to an evidentiary hearing with appointed
counsel). 5
Moreover, the district court may not avoid appointing
counsel simply by deeming the hearing to be something other than
an
“evidentiary”
hearing.
See,
e.g.,
id.
at
34-35
(quoting
Shepherd v. United States, 253 F.3d 585, 587 (11th Cir. 2001)
(per
curiam)
(“[W]e
observe
that
the
proceedings
clearly
resembled an evidentiary hearing, despite the district court’s
unwillingness to categorize it as such, because the court placed
5
See also Graham v. Portuondo, 506 F.3d 105, 107 n.2 (2d
Cir. 2007) (per curiam) (reversing the district court for
failure to appoint counsel for an evidentiary hearing on a
petition filed pursuant to 28 U.S.C. § 2254 and recognizing,
“the appointment of counsel requirement of the Rules Governing §
2254 Cases is identical to that of the Rules Governing § 2255
Proceedings”); United States v. Bendolph, 409 F.3d 155, 160 (3d
Cir. 2005) (en banc); Green v. United States, 262 F.3d 715, 71718 (8th Cir. 2001); Shepherd v. United States, 253 F.3d 585, 588
(11th Cir. 2001) (per curiam); Swazo v. Wyo. Dep’t of Corr.
State Penitentiary Warden, 23 F.3d 332, 334 (10th Cir. 1994)
(ruling in the context of a § 2254 proceeding); United States v.
Vasquez, 7 F.3d 81, 85 (5th Cir. 1993); Rauter v. United States,
871 F.2d 693, 695-97 (7th Cir. 1989).
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Shepherd under oath and questioned him extensively concerning
the basis of his claims. . . . Thus, . . . the district court,
having determined that an evidentiary hearing was necessary, was
obligated under Rule 8 of the Rules Governing § 2255 Motions to
appoint counsel for Shepherd.”).
Because Appellant’s motion focused on a “defect in the
collateral review process” -- failure to appoint counsel for an
evidentiary hearing -- rather than the substantive allegations
of his claims, it is properly characterized as a Rule 60 motion
rather than as a successive application for collateral review.
Winestock, 340 F.3d at 207.
court
had
jurisdiction
Hence, we conclude the district
to
reopen
the
matter
without
authorization from this court. 6
B.
We now turn to the merits of Appellant’s appeal -whether Appellant’s trial counsel was ineffective in failing to
file a direct appeal and in allegedly failing to counsel him
regarding an appeal.
To
establish
ineffective
assistance
of
counsel,
Appellant must show that: (1) counsel’s failures fell below an
6
Whether the district court abused its discretion in
granting Appellant’s Rule 60(b)(4) motion is a nonjurisdictional
issue which the Government waived by neglecting to allege any
pertinent challenge in the district court -- on timeliness, lawof-the-case, or any other ground.
15
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objective
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deficient
standard
of
performance
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reasonableness,
was
and
prejudicial.
Washington, 466 U.S. 668, 687 (1984).
(2)
See
counsel’s
Strickland
v.
“[C]ourts must judge the
reasonableness of counsel’s challenged conduct on the facts of
the particular case, viewed as of the time of counsel’s conduct,
and judicial scrutiny of counsel’s performance must be highly
deferential.”
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)
(internal quotation marks and citations omitted).
Court
has
“long
held
that
a
lawyer
who
The Supreme
disregards
specific
instructions from the defendant to file a notice of appeal acts
in a manner that is professionally unreasonable.”
Id.
We have
recognized that this is true “even though the defendant may have
waived his right to challenge his conviction and sentence in the
plea agreement.”
United States v. Poindexter, 492 F.3d 263, 265
(4th Cir. 2007).
In
Flores-Ortega,
Strickland
to
hold
that
defendant
generally
defendant
whether
to
“the
counsel’s
requires
pursue
Supreme
duty
counsel
an
to
to
appeal.”
Carolina, 430 F.3d 696, 704 (4th Cir. 2005).
Court
consult
discuss
Frazer
with
with
v.
the
the
South
Specifically, in
Flores-Ortega the Court stated,
counsel 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
16
applied
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nonfrivolous grounds for appeal), or (2)
that this particular defendant reasonably
demonstrated
to
counsel
that
he
was
interested in appealing.
528 U.S. at 480 (emphasis supplied).
In assessing whether an
attorney had a constitutional duty to consult,
the Court indicated that several factors
were
relevant,
including
whether
the
conviction followed a trial or guilty plea.
In cases involving guilty pleas, the Court
instructed lower courts to consider whether
the
defendant
received
the
sentence
bargained for as part of the plea and
whether the plea expressly reserved or
waived appeal rights.
Poindexter, 492 F.3d at 268 (internal quotation marks omitted).
Although not the determinative factor, “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
proceedings.”
Of
defendant
the
defendant
seeks
an
end
to
judicial
Flores-Ortega, 528 U.S. at 480.
note,
who
may
this
have
duty
to
waived
consult
his
also
right
to
extends
to
the
challenge
his
conviction and sentence in a written plea agreement.
As we have
previously recognized, “[i]n preparation for the appellate phase
of the case, an attorney in an appeal waiver case still owes
important duties to the defendant.”
271.
17
Poindexter, 492 F.3d at
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First
and
foremost,
the
attorney,
as
recognized in Flores-Ortega, has the duty to
respect the appellate wishes of his client
by filing a timely notice of appeal if he is
unequivocally instructed to do so.
Second,
as further recognized in Flores-Ortega, even
if his client does not express (or clearly
express) a desire to appeal, the attorney
may be required to file a timely notice of
appeal after appropriate consultation with
. . . his client.
Id. (internal quotation marks omitted).
This, however, does not
end the court’s inquiry.
In addition to showing that counsel’s performance in
failing to consult was deficient, the movant must also establish
prejudice resulting from such failure.
at
484.
“If
counsel
fails
to
Flores-Ortega, 528 U.S.
consult,
the
defendant
may
demonstrate prejudice by showing that a rational defendant would
want to appeal.
The defendant may do this by demonstrating
either a) there were non-frivolous issues for appeal, or b) he
had adequately indicated his interest in appealing.”
430 F.3d at 707-08.
defendant
is
Frazer,
However, “[i]n demonstrating prejudice, the
under
no
obligation
to
demonstrate
hypothetical appeal might have had merit.”
that
his
Poindexter, 492 F.3d
at 269 (internal quotations omitted).
Thus, even when, as here, a defendant agrees to an
appeal
waiver,
his
counsel
still
representation
with
respect
to
Specifically,
effective
representation
18
owes
a
him
potential
in
this
effective
appeal.
circumstance
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includes:
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Pg: 19 of 20
(1) filing a timely notice of appeal if requested to
do so, and (2) consultation regarding an appeal whether or not
instructed to file an appeal when there are nonfrivolous grounds
for appeal or when the defendant demonstrates a mere interest in
appealing.
See Flores-Ortega, 528 U.S. at 480; Poindexter, 492
F.3d at 271.
Here, the district court made findings as to the
first duty, but failed to do so as to the second.
In
the
May
15,
2012
Order,
the
district
court
specifically found that Appellant “did not call [trial counsel]
to request an appeal, nor did her [sic] write her a letter
unequivocally stating that he wished to file an appeal.”
343.
make
J.A.
Thus, the district court found that Appellant “did not
an
unequivocal
request
to
counsel
to
notice
a
direct
appeal,” and concluded that Appellant’s “claim for ineffective
assistance as to this matter must therefore fail.”
Id.
This leaves open the second inquiry as to whether his
trial counsel failed to counsel Appellant regarding an appeal,
and, if so, whether the failure amounted to a constitutionally
deficient performance.
The district court failed to address
this issue inasmuch as it made no findings in this regard.
As a
result, we must return this matter to the district court to make
findings based on the record before it, or if necessary, on the
basis
of
a
new
evidentiary
hearing
19
regarding
Appellant’s
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allegation that his trial counsel was ineffective in allegedly
failing to counsel him regarding an appeal.
IV.
Pursuant to the foregoing, this matter is remanded to
the district court.
VACATED AND REMANDED
20
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