Saturday, January 28, 2012

Special Update: W.D. Ky. Discusses the Poindexter Circuit Split

Hamilton v. United States, Nos. 3:11–CV–150, 3:09–CR–2, 2012 WL 246472 (W.D. Ky. Jan 26, 2012).

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?

These questions have formed the basis for opinions which split the circuits.  The Fourth Circuit holds that an attorney still must file a notice of appeal.  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.")  Now, the Western District of Kentucky weighs in with a thorough review of existing case law and grants a petitioner a Certificate of Appealability for the Sixth Circuit to rule on the issue.  Previous discussions of the issue by the Sixth Circuit have not been determinative.  Wright v. United States, 320 F. App'x 421 (6th Cir. 2009); Sarlog v. United States, No. 09-3033, 2011 WL 63599 (6th Cir. Jan 7, 2011).