Monday, January 3, 2011

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)

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