Thursday, December 2, 2010

Request for appeal must be unequivocal

Houston v. United States, Nos.3:09cv223, 3:07cr196, 2010 WL 4818097 (W.D.N.C. Nov. 22, 2010):

The Fourth Circuit has held that an attorney's failure to file a notice of appeal, when requested by his client to do so, is per se ineffective assistance of counsel.  Prejudice is presumed irrespective of the merits of the appeal or a waiver of appellate rights.  However, such request to file an appeal must be unequivocal.

The Western District of North Carolina held the following evidence not to satisfy the requirement of unequivocalness:
(1)  Petitioner's affidavit:  "When I questioned my attorney as to filing an appeal, he stated that it would not be in my best interest to appeal the sentence."

(2)  Petitioner's sister's affidavit:  "When I questioned my brother's attorney about appealing my brother's sentence, he stated, 'I am truly sorry, there is nothing else I can do, because it would not be in your brother's best interest to do so.'"
Viewing this evidence in the light most favorable to Petitioner, the Court held that this did not satisfy the requirement that the Petitioner make an unequivocal request.  Accordingly, the Court did not hold an evidentiary hearing on this issue.

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