Wednesday, August 17, 2011

Fourth Circuit reverses denial of 2255

United States v. Malone, No. 10-6807 (4th Cir. Aug. 16, 2011):

Petitioner pleaded guilty.  Immediately after sentencing, Petitioner informed his attorney of his interest in appealing.  Petitioner's son and daughter-in-law also told Petitioner's attorney about Petitioner's desire to appeal.  This triggered counsel's duty to properly consult with Petitioner regarding an appeal.

Counsel's deficient consultation.  In response, counsel sent Petitioner a letter which Petitioner received after the appeal deadline expired.  Counsel also spoke with Petitioner's son and daughter-in-law.  In these communications, counsel did not adequately inform Petitioner of the advantages and disadvantages of an appeal.  Counsel also misguided Petitioner by explaining that filing an appeal could result in the Government seeking an enhanced sentence by removing his acceptance of responsibility adjustment.  No such procedure existed, however.  As the consequences for filing a notice of appeal in this case were legally complex, counsel's assertion that Petitioner likely faced a longer sentence if he filed a notice of appeal, even if received by Petitioner, did not adequately advise Petitioner of all the circumstances surrounding a potential appeal.

Counsel also explained that he would not represent Petitioner on appeal and that Petitioner would have to retain new counsel.  This rendered counsel's performance deficient.  An attorney is not at liberty to disregard the appellate wishes of his client.  An attorney is obligated to file a requested appeal even if the attorney believes the appeal is meritless or even harmful to the client's interests.

Prejudice of counsel's performance.  Below, the district court concluded that had Petitioner wanted to appeal, he could have done so pro se.  The Fourth Circuit found persuasive, however, that counsel never informed Petitioner of this option.  Moreover, although the Court informed Petitioner of his right to file a notice of appeal, the court did not ensure that Petitioner heard or understood this right.  Additionally, counsel's comments to Petitioner that Petitioner would have to get a new attorney may have confused Petitioner.

Conclusion.  The Fourth Circuit held that counsel's deficient performance prejudiced Petitioner.  The Fourth Circuit reversed the district court's denial of Petitioner's § 2255 motion, vacated his sentence, and remanded the case for reentry of that sentence, so that Petitioner could have a second chance to seek direct review.

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