Thursday, January 27, 2011

Failure to file appeal doesn't warrant equitable tolling

Gray v. Lewis, No. 5:10-HC-2016-FL, 2011 WL 147299 (E.D.N.C. Jan. 18, 2011):

Petitioner argues he is entitled to equitable tolling of the statute of limitations because he instructed his trial counsel to file a notice of appeal, and his counsel failed to follow his instruction.  Petitioner has not provided any facts regarding how his counsel's failure to file a notice of appeal prevented him from filing a timely MAR [motion for appropriate relief].  Additionally, petitioner has not provided any explanation for the nearly ten year delay in filing his MAR. Rather, the court finds that with the exercise of due diligence, petitioner would have discovered that his counsel failed to file an appeal well before the expiration of the statutory period, and certainly well before he filed his MAR in 2009.  See United States v. Bear, No. 1:06CR00018, 2:05CR00029, 2010 WL 2773309, *2-3 (W.D.Va.2010), appeal dismissed, Nos 10-7032, 10-7033, 2010 WL 4024929 (4th Cir. Oct. 14, 2010) (unpublished).  Accordingly, petitioner has not demonstrated that “extraordinary circumstances” beyond his control prevented him from complying with the statutory time limit. See Rouse, 339 F.3d at 246. Thus, petitioner is not entitled to equitable tolling and his petition is time-barred.

[Ed. note:  It is interesting that the failure to note a timely appeal is brought as an equitable tolling principle as well as an underlying claim for habeas relief.]

Wednesday, January 26, 2011

The Use of 60(b) in Habeas Proceedings

Stefan Ellis, Note, Gonzalez v. Crosby and the Use of Federal Rule of Civil Procedure 60(b) in Habeas Proceedings, 13 U. Pa. J. Const. L. 207 (2010).

The Supreme Court's decision in Gonzalez v. Crosby creates a framework in which state prisoners who are denied federal habeas relief may invoke Rule 60(b) of the Federal Rules of Civil Procedure to seek review of the decision without impermissibly circumventing 28 U.S.C. § 2244(d)'s restrictions on second or successive habeas petitions ("SSHP"). While the plain language of 28 U.S.C. §2244 bars the use of SSHP under most circumstances, the applicability of Rule 60(b) to habeas proceedings has not received quite as much focus.

The final section of this comment discusses the impact of Gonzalez, relying on a 2009 decision in the Ninth Circuit to demonstrate how the application of Rule 60(b) to the habeas process addresses fears that an overly broad reading of AEDPA may restrict the ability of state prisoners to raise legitimate issues regarding the process by which a district court denied their original applications for habeas relief.

Monday, January 24, 2011

Freestanding Innocence as a Ground for Habeas Relief

Caroline Livett, Note, 28 U.S.C. § 2254(J):  Freestanding Innocence as a Ground for Habeas Relief:  Time For Congress to Answer the Court's Embarrassing Question, 14 Lewis & Clark L. Rev. 1649 (2010):

[August 18, 2011 Update:  For the Ninth Circuit's en banc opinion on the matter, see Lee v. Lampert, No. 09-35276 (9th Cir. Aug. 2, 2011) (en banc))].

The Supreme Court has struggled with whether a showing of innocence should be an independent ground for habeas relief, or whether it should just be a way for a prisoner to have his other claims heard by a federal court. Currently, a sufficient showing of actual innocence serves as a gateway through some of the many procedural bars created by courts and the Anti-Terrorism and Effective Death Penalty Act. Through this gateway, a prisoner who produces sufficient evidence of innocence can have his habeas claims heard by a federal court despite his failure to follow all of the proper procedures. This Comment suggests that the Court will never definitively answer this question and that Congress should instead amend the federal habeas statutes to make freestanding innocence a ground for habeas relief.

Tuesday, January 18, 2011

Is mandamus subject to the PLRA?

Grayson v. Fed. Bureau of Prisons, No. 1:11cv05, 2011 WL 111731 (M.D.N.C. Jan. 13, 2011):

Subsumed is the issue of whether mandamus is a civil action for which Plaintiff must pay the filing fee and/or is subject to the Prison Litigation Reform Act of 1996 (PLRA)(specifically the changes to 28 U.S.C. § 1915). A number of courts have wrestled with the decision of whether the PLRA applies to mandamus actions. In general, mandamus is not looked upon as an independent action, but rather a proceeding which must find its jurisdiction in other statutes. If those statutes would not subject a plaintiff to the PLRA, then the courts will not do so when a writ of mandamus is filed. In situations where the underlying controversy involved a criminal conviction and post-conviction relief, the appellate court found the request for a writ of mandamus was not subject to the PLRA. Madden v. Myers, 102 F.3d 74 (3d Cir.1996); In re Stone, 118 F.3d 1032 (5th Cir.1997). The same rule has been applied when the underlying proceeding was a criminal case prior to judgment. In re Nagy, 89 F.3d 115, 117 (2d Cir.1996); Martin v. United States, 96 F.3d 853, 854-55 (7th Cir.1996). On the other hand, when the underlying action was civil in nature, the PLRA has been held to apply and the plaintiff has been required to pay the filing fee. In re Tyler, 110 F.3d 528, 529 (8th Cir.1997)(civil rights lawsuit against prison officials); In re Smith, 114 F.3d 1247 (D .C.Cir.1997)(petition requesting writ of prohibition along with request for parole files and compensatory and punitive damages under Privacy Act of 1974); see also Green v. Nottingham, 90 F.3d 415 (10th Cir.1996) (prisoner civil rights action). Plaintiff's motion would seem to more closely resemble these latter cases.

Padilla found not retroactive

Doan v. United States, Nos. 1:06cr463, 1:06cr525, 2011 WL 116811 (E.D. Va. Jan. 4, 2011):

Because Petitioner seeks to invoke Padilla after the limitations period expired in this case, this Court must resolve whether Padilla can be applied retroactively.  Padilla can only apply retroactively if it is an old rule or a new rule subject to an exception.  Because failing to advise Petitioner as to deportation risk would not have been objectively unreasonable at the time his conviction became final, Padilla announced a “new” rule. The question, then, is whether Padilla may be subject to one of the retroactivity exceptions for new rules outlined in Teague.  Padilla did not announce a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.  Nor did it alter the range of conduct or the class of persons that the law punishes.  Therefore, the Court will not apply Padilla retroactively.

[UPDATE:  The Third Circuit announced that Padilla applies retroactively on collateral review.  See United States v. Orocio, No. 10-1231 (3d Cir. June 29, 2011).]

[8/30/2011 UPDATE:  The Seventh Circuit announced that Padilla does not apply retroactively.  See Chaidez v. United States, No. 10-3623 (7th Cir. Aug. 23, 2011).]

IAC as cause for procedural default must itself be exhausted

Hatcher v. Johnson, No. 3:10cv08, 2011 WL 102718 (E.D. Va. Jan. 10, 2011)

Hatcher cannot rely on ineffective assistance of counsel to excuse his default. A claim of ineffective assistance of counsel as cause for the procedural default of another claim “is itself an independent constitutional claim.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Therefore, a claim of ineffective assistance of counsel as cause for a second constitutional claim must be exhausted, or it may be procedurally defaulted itself. Id. at 453. Hatcher has not properly presented any ineffective assistance of counsel claim to the Supreme Court of Virginia. Were Hatcher to attempt to do so now, the Supreme Court of Virginia would find the claim barred by Section 8.01-654(B)(2) of the Virginia Code. Accordingly, Hatcher's has not shown cause, and his claims are procedurally defaulted.

Wednesday, January 12, 2011

Fourth Circuit reverses District Court's habeas grant

Underwood v. Harkleroad, No. 10-6077 (4th Cir. Jan 12, 2011)

The District Court granted a petition for writ of habeas corpus because defense counsel's promise during opening statement to present evidence and then failing to do so amounted to constitutionally deficient performance which prejudiced the defendant.

The Fourth Circuit reversed because the attorney's failure to offer the promised evidence—including a third-party's confession—was not deficient or prejudicial.

(Reversing Underwood v. Harkleroad, No. 5:04-cv-193, 2009 WL 5064752 (W.D.N.C. Dec. 23, 2009).)

Tuesday, January 11, 2011

Smith v. Cross

Smith v. Cross, No. 2:10cv35, 2011 WL 39033 (N.D. W. Va. Jan. 5, 2011):

This case cites Griffin v.. Ebbert, 2008 WL 2036817 (M.D. Pa. 2008) for the proposition that a prison's failure to comply with its own procedures will not result in a due process violation as long as the inmate is provided with the process he is due under Wolff v. McDonnell, 418 U.S. 539 (1974).

United States v. London

United States v. London, No. 6:09-cr-566-GRA-6, 2011 WL 31294 (D.S.C. Jan 5, 2011):

What is the proper vehicle for bringing a motion to reduce sentence pursuant to the so-called "crack amendment"?  Requests for sentence reductions under the Fair Sentencing Act of 2010 are cognizable as petitions under § 2255. See, e.g., United States v. Boyd, No. 08-70, 2010 WL 5373923 (E.D.La. Dec.21, 2010); Brazleton v. United States, No. 3:10-cv-382-RM, 2010 WL 5391579 (N.D.Ind. Dec.21, 2010); Coleman v. Owen, No. 0:10-2151-SB-PJG, 2010 WL 3842381 (D.S.C. Aug.30, 2010), adopted by district judge, 2010 WL 4337995 (Oct. 22, 2010). Indeed, at least one court in this District has suggested that a § 2255 petition is the sole vehicle for this particular claim. See Coleman, 2010 WL 3842381, at *3.

As an alternative to considering Defendant's Motion under § 2255, Defendant's Motion could reasonably be construed as a motion for a sentence reduction pursuant to 18 U.S.C. §§ 3582(c)(1)(B) and/or 3582(c)(2). See United States v. Jones, No. 4:98-cr-89, 2010 WL 5057089 (W.D.N.C. Dec.6, 2010) (construing request for retroactive application of the Fair Sentencing Act of 2010 as a § 3582(c)(2) motion). 18 U.S.C. § 3582(c)(1)(B) provides that “the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S.C. § 3582(c)(2) permits a court to reduce the sentence of a defendant whose prison sentence was based on a sentencing range that has subsequently been lowered by the United States Sentencing Commission, provided that such a reduction is consistent with applicable policy statements issued by the Commission.

Monday, January 10, 2011

Supreme Court grants certiorari

The Supreme Court recently granted certiorari in two cases, neither of which developed in the Fourth Circuit, but which will require watching.  Thanks to Habeas Corpus Blog for the tip.

Lafler v. Cooper:  According to SCOTUSblog, here's the issue:
Whether a state habeas petitioner is entitled to relief when his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial.
Missouri v. Frye:  According to SCOTUSblog, here's the issue:
Can a defendant who validly pleads guilty assert a claim of ineffective assistance of counsel by alleging that, but for counsel's error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms? What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?

Friday, January 7, 2011

United States v. Holbrook

United States v. Holbrook, No. 2:01cv10023, 2011 WL 24564 (W.D. Va. Jan. 5, 2011):

Petitioner intentionally killed her husband without justification and lied repeatedly in order to escape responsibility for the act.  Petitioner pleaded guilty and subsequently filed a 2255 motion, which violated the terms of her plea agreement.  Government sought to try her for the underlying crimes because she breached her plea agreement.  The Court found that although Petitioner did breach the agreement, the Government had not shown that the breach was material, that is, sufficiently serious to warrant a remedy.  The Court essentially finds that because 2255 relief was warranted, the breach of the plea agreement was immaterial.

Thursday, January 6, 2011

Jordan v. Johnson

Jordan v. Johnson, No. 10cv274, 2010 WL 5462497 (E.D. Va. Dec. 29, 2010):

"A prisoner's confinement in administrative segregation may qualify as an extraordinary circumstance beyond his control, but equitable tolling is justified only where the prisoner has shown that despite his segregated confinement he diligently pursued his habeas claims and his confinement prevented him from filing on tine." Green v. Kansas, 190 F. App'x 682, 684-85 (10th Cir.2006) (internal citation omitted). "'[T]ransfers between prison facilities, solitary confinement, lockdowns, restricted access to the law library and an inability to secure court documents do not qualify as extraordinary circumstances.'" Allen v. Johnson, 602 F.Supp.2d 724, 727-28 (E.D.Va.2009) (quoting Warren v. Kelly, 207 F.Supp.2d 6, 10 (E.D.N.Y.2002)).

Jordan submits five letters from the Supreme Court of Virginia, the Fourth Circuit, and the Supreme Court of the United States responding to Jordan's various correspondence, with dates ranging from September 22, 2009 to December 1, 2009.  It is evident that whatever the conditions of Jordan's detention, they did not prevent Jordan's ability to communicate with this Court. Thus, Jordan's confinement does not amount to an extraordinary circumstance that prohibited his filing despite his due diligence. Accordingly, Jordan's claim for equitable tolling is without merit.

King v. Brown

King v. Brown, No. 7:10cv405, 2010 WL 5478476 (W.D. Va. Dec. 30, 2010):

The right to credit for pretrial jail time served is constitutionally mandated. Durkin v. Davis, 538 F.2d 1037, 1039 (4th Cir.1976). Moreover, Virginia law also mandates that a person sentenced to a prison term receive credit for jail time served awaiting trial. See Va.Code Ann. § 53.1-187. On the other hand, “[a] logical, commonsense reading [of § 53.1-187] supports the interpretation that this section applies to time spent in pretrial detention on charges that result in conviction.” Wallace v. Jarvis, ---F.Supp.2d ----, Case No. 7:09cv00426, 2010 WL 2989846, at *4 (W.D.Va. July 30, 2010) (Wilson, D.J.). There is no constitutional or statutory right to credit for pretrial detention served related to separate charges. Id. at *3-4.

Actual innocence does not provide basis for equitable tolling

Hill v. Johnson, No. 3:09cv659, 2010 WL 5476755 (E.D. Va. Dec. 30, 2010):

[August 18, 2011 Update:  For the Ninth Circuit's en banc opinion on the matter, see Lee v. Lampert, No. 09-35276 (9th Cir. Aug. 2, 2011) (en banc))].

To the extent that Hill's petition may be construed to assert that his claim of actual innocence invokes equitable tolling, this argument fails. “Neither the Supreme Court nor the Fourth Circuit has decided whether a claim of actual innocence warrants tolling of the statute of limitations. The majority of Circuit Courts that have addressed this issue have rejected actual innocence as a basis for equitable tolling. See, e.g., Lee v. Lampert, 610 F.3d 1125, 1133 (9th Cir.2010); Escamilla v. Jungwirth, 426 F.3d 868, 872 (7th Cir.2005) (“ ‘[A]ctual innocence’ is unrelated to the statutory timeliness rules.”); David v. Hall, 318 F.3d 343, 347 (1st Cir.2003) (“[T]he statutory one-year limit on filing initial habeas petitions is not mitigated by any statutory exception for actual innocence even though Congress clearly knew how to provide such an escape hatch.”); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.2002); Flanders v. Graves, 299 F.3d 974, 977 (8th Cir.2002). However, the United States Court of Appeals for the Sixth Circuit has acknowledged the possibility that a showing of actual innocence could provide a basis for equitable tolling. Souter v. Jones, 395 F.3d 577, 602 (6th Cir.2005).

Wednesday, January 5, 2011

Challenged attorneys still subject to ethical duties

Hicks v. United States, No. 2:05-cr-00040, 2010 WL 5441679 (S.D. W. Va. Dec. 28, 2010):

(For another case in which an attorney declines to provide an affidavit refuting the petitioner's claim of ineffective assistance, citing ABA Formal Opinion 10-456, see United States v. Rankin, No. 5:09cr13, 2010 WL 5478472 (W.D. Va. Dec. 30, 2010).)

In a § 2255 proceeding, the United States filed a motion for an order directing the petitioner's former counsel to provide information to the United States concerning petitioner's claims of ineffective assistance of counsel.

The West Virginia Rule of Professional Conducts state:  "A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized . . . to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client . . . or to respond to allegations in any proceeding concerning the lawyer's representation of a client."

On July 14, 2010, the ABA's Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 10-456, "Disclosure of Information to Prosecutor When Lawyer's Former Client Brings Ineffective Assistance of Counsel Claim."  This Formal Opinion states:
Although an ineffective assistance of counsel claim ordinarily waives the attorney-client privilege with regard to some otherwise privileged information, that information still is protected by Model Rule 1.6(a) unless the defendant gives informed consent to its disclosure or an exception to the confidentiality rule applies. Under Rule 1.6(b)(5), a lawyer may disclose information protected by the rule only if the lawyer “reasonably believes [it is] necessary” to do so in the lawyer's self-defense. The lawyer may have a reasonable need to disclose relevant client information in a judicial proceeding to prevent harm to the lawyer that may result from a finding of ineffective assistance of counsel. However, it is highly unlikely that a disclosure in response to a prosecution request, prior to a court-supervised response by way of testimony or otherwise, will be justifiable.
One of the attorneys who was subject to the ineffective assistance allegation first requested that the Court make a determination regarding whether the petitioner would be prejudiced by the alleged error before the Court require any attorney to respond to the United States's request for disclosure.  The United States argues that the Court should reject Formal Opinion 10-456 because, inter alia, attorney disclosures should not be only permissible with client consent or in a judicially supervise proceeding.  The United States contends that once a client makes allegations against an attorney, the lawyer may exercise his or her discretion regarding disclosure of information necessary to defend against those allegations and no court supervision is necessary.  The United States submitted a proposed order that finds that a petitioner alleging ineffective assistance of counsel impliedly waives his attorney-client privilege.

The Court concludes that in the context of a § 2254 petition or a § 2255 motion alleging denial of effective assistance of counsel, the Fourth Circuit is likely to approve only a narrow implied waiver of the attorney-client privilege.  The Court advises other District Courts, when considering habeas corpus petitions alleging denial of effective assistance of counsel, to supervise the government's requests for disclosure of privileged communications between defendant and defense attorney.

Moorish-Americans subject to personal jurisdiction of the United States

Caldwell v. Wood, No. 3:07cv41, 2010 WL 5441670 (W.D.N.C. Dec. 28, 2010):

Petitioner claims that the trial court lacked jurisdiction over him based upon his Moorish American nationality.  The suggestion that Petitioner is entitled to ignore the laws of the State of North Carolina by claiming membership in the “Moorish-American” nation is ludicrous. See, e.g., United States v. James, 328 F.3d 953, 954 (7th Cir.2003) (“Laws of the United States apply to all persons within its borders”); Allah El v. Dist. Att'y for Bronx County, No. 09 Civ. 8746, 2009 WL 3756331, at *1 (S.D.N.Y. Nov. 4, 2009) (“Petitioner's purported status as a Moorish-American citizen does not enable him to violate state and federal laws without consequence”); cf. El-Bey v. United States, No. 1:08CV151, 2009 WL 1019999 (M.D.N.C. Jan. 26, 2009) (unpublished) (any claims or arguments raised by Plaintiff which are based on his membership in the Moorish American Nation are frivolous).

Kimbrough is not retroactive

Burston v. Warden of FCI-Williamsburg, No. 6:10cv2692, 2010 WL 5462474 (D.S.C. Dec. 29, 2010):

Petitioner raises in his application for habeas relief recent case law which has held that a District Court has discretion in applying the previously utilized ratios for crack and powder cocaine when engaged in federal sentencing, which reflected a change from a previous holding that the District Courts had no such discretion. See Kimbrough v. United States, 552 U.S. 85, 89-90 (2007); United States v. Eura, 440 F.3d 625, 632-33 (4th Cir. 2006). Courts have held, however, that Kimbrough is not retroactive and prior sentences involving convictions for the possession and/or distribution of crack cocaine are not per se improper or unlawful. Jackson v. Pearson, 2010 WL 2683132 (S.D. Miss. 2010); Thorpe v. Warden, 2010 WL 744697 (C.D. Ill. 2010); Baker v. United States, 2009 WL 2612648 (D.S.C. 2009).

Monday, January 3, 2011

Entry of judgment date determines finality of conviction; language barrier permits equitable tolling

Mendoza-Miguel v. United States, No. 7:08-CR-127-BO-1, 2010 WL 5353970 (E.D.N.C. Dec. 21, 2010):

Circuit Split:

The parties dispute when Petitioner's judgment of conviction became “final” for purposes of determining the running of the statute of limitations.  Petitioner believes his judgment became final on September 25, 2009, when the time to file a notice of Appeal under Fed. R.App. P. 4(b)(4) expired.  The government, on the other hand, contends the Petitioner's statute of limitations for filing a § 2255 claim began to run on the date this Court's Judgment was entered—September 15, 2009.  The government is correct.

The Circuit Courts are split as to when a judgment of conviction becomes final for purposes of § 2255(f)(1), where, as here, the Defendant files no appeal. The Second, Third, Sixth, Tenth and Eleventh Circuits have held that “the judgment becomes final upon the expiration of the period in which the defendant could have appealed to the court of appeals. Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th Cir.2004) (emphasis added).  Accord United States v. Prows, 448 F/3d 1223, 1227-28 (10th Cir.2006); Moshier v. United States, 402 F.3d 116, 118 (2d Cir.2005); Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir.2000); Kapral v. United States, 166 F.3d 565, 577 (3d Cir.1999). This is the standard Petitioner urges the Court to apply. Petitioner's argument, however, is foreclosed by Fourth Circuit precedent.

In this Circuit, where no appeal has been filed, the judgment of conviction becomes final on the date the district court enters judgment, and not “upon the expiration of the period in which the defendant could have appealed to the court of appeals.” See United States v. Sanders, 247 F.3d 139, 142 (4th Cir. 2001).

[Editor's note:  Sanders relies on Torres, which was abrogated by Clay, 537 U.S. 522 (2003).  Accordingly, the Sanders opinion should be carefully applied.]

Equitable Tolling:

The Court finds that the equitable tolling doctrine can properly be invoked in this case because 1) Petitioner does not read, write, or speak English, 2) the BOP does not provide any legal materials in Spanish at FCI Sandstone where Petitioner is incarcerated, and 3) despite Petitioner's requests dating to at least June 3, 2010 to the present, Petitioner's lawyer failed to convey copies of Petitioner's file to Petitioner.  The Court notes with particular consternation the alleged dilatory tactics of Petitioner's lawyer.  It is the opinion of the Court that a Petitioner cannot be deemed entirely responsible for the timeliness (or untimeliness) of his filings where the Petitioner's lawyer fails to discharge his duty to timely communicate with his client.

"Rich" prisoners may not proceed in forma pauperis

Stallings v. Warden, No. 8:10-cv-02668-RBH, 2010 WL 5387488 (D.S.C. Dec. 22, 2010):

A petitioner who is willing to pay the $5.00 statutory filing fee, and who has over $2,900 in his prison trust fund account, cannot proceed in forma pauperis only because he wishes to receive collateral benefits of the status.

A litigant is not required to show that he is completely destitute in order to qualify as an indigent within the meaning of § 1915(a). Grants or denials of applications to proceed in forma pauperis are left to the discretion of federal district courts.  There are no "magic formulas" for making the determination that the requisite in forma pauperis status is present, but instead, there is required a careful scrutiny and weighing of all of the relevant facts and circumstances involved in each particular situation.  However, the privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who, within the District Court's sound discretion, would remain without legal remedy if such privilege were not afforded to them.

The Poindexter Circuit Split

Circuit Split:

The Issue:  What happens when a petitioner claims ineffective assistance of council for his attorney not noting an appeal after an unequivocal instruction to do so and after submitting a guilty plea in which the petitioner waives his right to appeal?  Is the attorney per se ineffective?

Collecting Cases

Attorney Must File Appeal After Waiver: 

United States v. Poindexter, 492 F.3d 263, 273 (4th Cir. 2007) ("[A]n attorney is required to file a notice of appeal when unequivocally instructed to do so by his client, even if doing so would be contrary to the plea agreement and harmful to the client’s interests.")

Sandoval-Lopez, 409 F.3d 1193 (9th Cir. 2005) (concluding that an ineffective assistance of counsel claim is established where an attorney fails to file a requested notice of appeal even where a waiver of appeal is present)

Gomez-Diaz v. United States, 433 F.3d 788 (11th Cir.2005)

United States v. Garrett, 402 F.3d 1262 (10th Cir.2005)

Campusano v. United States, 442 F.3d 770 (2d Cir.2006)

Watson v. United States, 493 F.3d 960 (8th Cir. 2007)

United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007) (?)

Attorney Need Not File Appeal After Waiver:

Nunez v. United States, 546 F.3d 450, 456 (7th Cir. 2008) (holding that counsel is not per se ineffective for honoring a client’s written waiver of appeal instead of the client’s later oral instruction to appeal)

United States v. Mabry, 536 F.3d 231 (3d Cir. 2008)

United States v. Arevalo, No. 5:07-153-JMH-JGW, 2010 WL 5391459 (E.D. Ky. Dec. 22, 2010)

United States v. Falcon, No. 07-147-ML, 2011 WL 777852, at *6 (D.R.I. Feb. 28, 2011)

Not Determinative:

Wright v. United States, 320 F. App'x 421 (6th Cir. 2009) (not determinative)

Sarlog v. United States, No. 09-3033, 2011 WL 63599 (6th Cir. Jan 7, 2011)