Attorney-Client Issues - Ineffective Assistance of Counsel -- Appeal

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts
By Don Samuel
Garland, Samuel & Loeb, P.C.
Sep 1, 2015

Roe v. Flores-Ortega, 528 U.S. 470 (2000)

Counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.

Franco v. United States, 762 F.3d 761 (8th Cir. 2014)

In this §2255 proceeding, the district court erred in denying the defendant’s request for an evidentiary hearing on the issue of whether he requested that his attorney to file a notice of appeal.

Payne v. Stansberry, 760 F.3d 10 (D. C. Cir. 2014)

The trial judge instructed the jury (according to the transcript), “If you find that the government has failed to prove any element of the offense, beyond a reasonable doubt, you must find that defendant guilty.” Though this may have been a transcription error, the government failed to prove that it was. And if it were simply a slip of the tongue, that does not alter the fact that it was obvious and plain error affecting the defendant’s substantial rights. Appellate counsel’s failure to raise this issue on appeal amounted to ineffective assistance of counsel.

Milton v. Miller, 744 F.3d 660 (10th Cir. 2014)

The state court applied the incorrect standard in evaluating petitioner’s claim that his appellate counsel provided ineffective assistance of counsel. The key ingredient of this claim focuses on the appellate issue that was omitted, but which had merit. The state court in this case erroneously held that this fact, alone, is not sufficient to merit relief.

Dowell v. United States, 694 F.3d 898 (7th Cir. 2012)

Failure to file a notice of appeal when asked to do so by the defendant is ineffective assistance of counsel which can be raised even if the defendant’s plea agreement provided for a waiver of the right to bring a collateral attack.

Glover v. Birkett, 679 F.3d 936 (6th Cir. 2012)

Trial counsel’s failure to file a notice of appeal was ineffective assistance of counsel. The fact that the state appellate court subsequently decided adversely to the defendant his application for leave to file an appeal was not a sufficient substitute that obviated the prejudice.

Ramchair v. Conway, 601 F.3d 66 (2d Cir. 2010)

At the defendant’s state court trial, the prosecutor introduced evidence that the defendant was picked out of a line-up. The officer not only testified that the defendant was chosen by the witness, but that the line-up was properly composed – indeed, the defendant’s trial counsel was present (according to the officer) and did not object to the composition of the line-up. The defense counsel objected and asked for a mistrial, explaining that he felt compelled to testify and explain why he did not object. The trial court denied the mistrial motion. Appellate counsel provided ineffective assistance in counsel by failing to challenge the efficacy of an appeal waiver that was inapplicable, because the trial court declined to apply the sentencing recommendation in the plea agreement, which was a prerequisite to enforcing the appeal waiver.

Bostick v. Stevenson, 589 F.3d 160 (4th Cir. 2009)

Trial counsel’s failure to file an appeal of defendant’s state murder conviction was ineffective assistance of counsel. The defendant announced his intention to appeal in court and this triggered, at a minimum, counsel’s duty to consult with the client about filing an appeal.

Hodge v. United States, 554 F.3d 372 (3rd Cir. 2009)

Counsel provided ineffective assistance of counsel by failing to file a timely notice of appeal. The remedy (imposed in this § 2255 case) was to remand the case to the district court to re-impose the sentence so that a timely notice of appeal could be filed.

Scruggs v. United States, 513 F.3d 675 (7th Cir. 2008)

Appellate counsel was ineffective in failing to challenge a two-point gun enhancement to the Guideline Calculation.

Corral v. United States, 498 F.3d 470 (7th Cir. 2007)

Trial counsel’s unavailability during the ten day period after entry of the guilty plea, which prevented the defendant from requesting that an appeal be filed, amounted to ineffective assistance of counsel.

United States v. Poindexter, 492 F.3d 263 (4th Cir. 2007)

If a client unequivocally instructs his attorney to file a notice of appeal – even if there was an appeal waiver in the plea agreement – it is ineffective assistance of counsel to fail to file an appeal.

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

Same as Poindexter / Shedrick, and other cases – attorney must file notice of appeal, even if there is an appeal waiver, if defendant expresses a desire to appeal.

United States v. Shedrick, 493 F.3d 292 (3rd Cir. 2007)

Failure to file an appeal, even in a case with an appeal waiver, is ineffective assistance of counsel if the defendant requests that an appeal be filed.

Thompson v. United States, 504 F.3d 1203 (11th Cir. 2007)

Counsel failed to properly consult with the defendant about his right to appeal his sentence. This was ineffective assistance of counsel.

Hammon v. Ward, 466 F.3d 919 (10th Cir. 2006)

Two brothers were arrested in a car with crack cocaine and guns. One lawyer represented them. Their theory was going to be that brother #1 possessed the gun, and neither possessed the drugs (they had borrowed the car). Brother #1, however, entered a guilty plea to probation with the understanding that he would testify against brother #2. The lawyer continued to represent brother #2 (and did not tell the #2 that #1 had entered a guilty plea). Everything about this situation represented a conflict. Not only does this pose an actual conflict of interest, but appellate counsel was ineffective in failing to raise this issue in the state appeal. Because of some uncertainty in the record, however, a remand to the federal habeas court was necessary to more fully develop the record.

Harrington v. Gillis, 456 F.3d 118 (3rd Cir. 2006)

The court rejected the state court’s conclusion that in the absence of a specific request by the defendant to his attorney to file an appeal, there can be no ineffective finding regarding appellate counsel for failure to file an appeal. Roe v. Flores-Ortega requires a more detailed inquiry and rejected this per se rule. The court concluded that considering all the circumstances, the defendant did express an interest in pursuing an appeal of his conviction.

Frazer v. South Carolina, 430 F.3d 696 (4th Cir. 2005)

Applying Roe v. Flores-Ortega, 528 U.S. 470 (2000), the court held that the state court trial counsel was ineffective in failing to consult with the defendant about his right to appeal his state court conviction.

Franklin v. Anderson, 434 F.3d 412 (6th Cir. 2006)

Appellate counsel was ineffective in failing to raise the trial court’s error in failing to excuse a prospective juror for cause. The juror demonstrated during voir dire that the juror could not comprehend the legal standard she was supposed to apply.

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

Even if there is an appeal waiver, if the defendant requests that the attorney file an appeal, it is ineffective assistance of counsel to fail to do so.

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

Even though there was a limited waiver of appeal in the plea agreement, counsel was ineffective in failing to file an appeal at the request of the defendant. The trial court erred in holding that the defendant (i.e., habeas petitioner) was required to show a non-frivolous appeal issue in order to prevail on his ineffective claim.

Fountain v. Kyler, 420 F.3d 267 (3rd Cir. 2005)

Appellate counsel was ineffective in advising the defendant not to appeal the state court’s decision on the belief – erroneous, as it turns out – that a new state statute would be applied retroactively. Counsel believed that if the appeal were successful, the defendant would be facing a new death penalty trial under the new law. However, it was later decided that the new law could not be applied to old cases; thus, the defendant did not face the risk of the death penalty if he appealed.

United States v. Sandoval-Lopez, 409 F.3d 1193 (9th Cir. 2005)

Though there was an explicit appeal waiver in the plea agreement, the attorney’s failure to file an appeal, pursuant to the defendant’s request, was ineffective assistance of counsel.

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

Defendant was entitled to a hearing to determine whether he authorized his counsel not to file an appeal. Even though he signed an appeal waiver prior to entering a guilty plea, the defendant was entitled to file a notice of appeal and challenge the efficacy of the waiver.

Ballard v. United States, 400 F.3d 404 (6th Cir. 2005)

Following defendant’s conviction, the Supreme Court decided Appprendi. Appellate counsel was ineffective in failing to raise an Apprendi challenge to the sentence. The defendant was convicted of a drug conspiracy, but the evidence at trial was unclear whether the defendant was responsible for marijuana, or cocaine. The failure to challenge the sentence on appeal was ineffective, especially since appellate counsel was aware of the successful challenge raised by a co-defendant.

Sanders v. Cotton, 398 F.3d 572 (7th Cir. 2005)

The state trial court erred in failing to instruct the jury, in accordance with state law, that if the issue of heat of passion is raised, the state was obligated to prove the absence of heat of passion beyond a reasonable doubt before it could convict the defendant of murder. The trial counsel requested the instruction. Appellate counsel provided ineffective assistance of counsel in failing to raise this meritorious issue in the state appeal.

Richey v. Mitchell, 395 F.3d 660 (6th Cir. 2005)

Appellate counsel’s failure to challenge the sufficiency of the evidence (and to attack trial counsel’s failure to do so, as well) was ineffective assistance of counsel. The state had prosecuted the defendant for felony murder on a theory of transferred intent. But at the time, the state law did not provide for a conviction for felony murder on the basis of transferred intent. Failing to raise this was deficient on the part of both the trial and the appellate counsel. See also 498 F.3d 344 (6th Cir. 2007), where the writ was again issued (following remand from the Supreme Court, though the writ was issued on different grounds.

United States v. Hilliard, 392 F.3d 981 (8th Cir. 2004)

Trial counsel’s failure to file a timely motion for new trial following the defendant’s conviction was ineffective assistance of counsel which necessitated setting aside the conviction, because the district court found that had such a motion been filed, it would have been granted.

Mapes v. Tate, 388 F.3d 187 (6th Cir. 2004)

Appellate counsel’s failure to raise an Eddings claim on appeal in this death penalty case was ineffective assistance of appellate counsel. The appropriate relief was to grant the writ, conditioned on the defendant being given the right to present the issue on direct appeal to the state appellate court.

Lewis v. Johnson, 359 F.3d 646 (3rd Cir. 2004)

Pursuant to Fores-Ortega, defense counsel was ineffective in this case in failing to advise the defendant of his right to appeal.

United States v. Reinhart, 357 F.3d 521 (5th Cir. 2004)

Appellate counsel was ineffective in failing to properly raise a meritorious challenge to the guideline application in this case.

McFarland v. Yukins, 356 F.3d 688 (6th Cir. 2004)

Trial counsel represented two defendants at trial. Just prior to the beginning of trial, the attorney told the trial judge that things had become a bit “sticky” and that perhaps some inquiry would be appropriate. The trial judge declined. However, the judge did grant a severance and the defendants proceeded to trial with one lawyer, but in separate trials. The trials were conducted as bench trials, back-to-back, over the course of three days. In fact, the trials actually overlapped. Pursuant to Holloway, the trial court erred in failing to fully inquire into the conflict that was presented to the court prior to trial. See also Harris v. Carter, 337 F.3d 758 (6th Cir. 2003). Though Holloway requires automatic reversal where a complaint is raised pre-trial to joint representation at the same trial, the same rule applies here, where the problem was raised prior to the scheduled joint trial and the only remedy was severance. Appellate counsel’s failure to raise the conflict issue amounted to ineffective assistance of appellate counsel.

Caver v. Straub, 349 F.3d 340 (6th Cir. 2003)

Appellate counsel was ineffective in failing to raise trial counsel’s ineffectiveness in failing to be present when the jury sent a note back during deliberations and when the trial court re-charged the jury.

United States v. Conley, 349 F.3d 837 (5th Cir. 2003)

Trial counsel was ineffective in failing to challenge the defendant’s sentence on the § 371 conspiracy count. In the trial court, the parties and the court erroneously believed the conviction was for a money laundering conspiracy (§ 1956(h)). Section 371 limits exposure to five years, while § 1956(h) permits a twenty year sentence. It was ineffective to fail to object to a sentence that exceeded the statutory maximum. Moreover, appellate counsel was ineffective in failing to appeal this error.

Joshua v. Dewitt, 341 F.3d 430 (6th Cir. 2003)

The defendant was stopped for speeding and the trooper determined that he, along with his passenger were acting nervous and suspicious. The trooper called his dispatcher and was told that the defendant was listed as a suspicious person who was believed to be a drug courier in a “Read & Sign” book maintained by the police department. Based on this information, the trooper detained the defendant while waiting for a canine to arrive. The dog arrived forty-two minutes later. Drugs were found on the passenger, who implicated the defendant. State trial counsel failed to challenge the legitimacy of the Read and Sign book that prompted the detention. Instead, he simply challenged the length of the detention. Based on United States v. Hensley, 469 U.S. 221 (1985), a detention based on a “flyer” or something else akin to a “Read and Sign” book requires proof that the author of the flyer had reasonable suspicion to list the suspect as a criminal. In this case, however, the state offered no proof that the Read and Sign book was based on reliable information. Moreover, the state’s contention that the defendant’s nervousness justified a detention was meritless. Nervousness may be a basis for an articulable suspicion, but only when it is coupled with evasive behavior. The state trial lawyer’s failure to challenge the stop and search on this basis was ineffective assistance of counsel. The Sixth Circuit also noted that Hensley is not limited to initial stops, but also covers situations in which a stop is prolonged based on this type of information. The Sixth Circuit concludes that not only was trial counsel ineffective, but appellate counsel was, as well.

Garcia v. United States, 278 F.3d 134 (2d Cir. 2002)

Counsel’s advice to the defendant that he could not file a notice of appeal because of an appeal waiver was incorrect, and violated the defendant’s right to effective assistance of counsel. When a habeas petitioner successfully shows that he was denied the right to direct appeal, the proper remedy is to vacate the sentence and remand for re-sentencing.

Blankenship v. Johnson, 118 F.3d 312 (5th Cir. 1997)

If the state seeks discretionary review of the decision of the first appellate court, the defendant has the right to the assistance of counsel at this discretionary review proceeding. In this case, the appointed counsel did nothing. This amounts to ineffective assistance of counsel.

Hughes v. Booker, 220 F.3d 346 (5th Cir. 2000)

Mississippi law enabled an appointed appellate counsel to withdraw after filing a certificate that stated that no reversible errors were found in a review of the record. This certificate did not satisfy the requirements of Anders v. California, 386 U.S. 738 (1967).

Jackson v. Leonardo, 162 F.3d 81 (2d Cir. 1998)

Petitioner’s appellate counsel was ineffective in failing to raise a double jeopardy argument on appeal, challenging his conviction on two counts that could not be prosecuted separately without violating the double jeopardy clause.

Ludwig v. United States, 162 F.3d 456 (6th Cir. 1998)

An attorney’s failure to file a notice of appeal, despite the wishes of the defendant, amounts to ineffective assistance of counsel, regardless of the merits of the appeal.

Roe v. Delo, 160 F.3d 416 (8th Cir. 1998)

Appellate counsel was ineffective in failing to assert that it was plain error to give an incorrect definition of first degree murder instruction to the jury. The state court instruction erroneously informed the jury that an intent to cause serious physical injury to the victim was a sufficiently culpable state of mind to support a first degree murder conviction. Actually, in Missouri, an intent to kill is required for a first degree murder conviction. The Eighth Circuit grants the writ: the remedy was to release the petitioner unless he was allowed to file a new appeal including this ground, in the state appellate court.

Claudio v. Scully, 982 F.2d 798 (2d Cir. 1992)

Defendant’s first attorney allowed the defendant to make a confession. Under state law, the right to counsel had attached at this point. The trial court held that the confession should be suppressed because the first attorney rendered ineffective assistance of counsel. A new attorney was retained; the state appealed to the first-level appellate court and the trial court’s decision was reversed, on the theory that although there was a right to counsel at the time of the confession under the state constitution, there was no right to effective assistance. The second attorney did not raise the state right to counsel in his appeal of this decision to the second-level appellate court, relying instead on the federal Sixth Amendment (which had not attached, because there was no indictment at the time of the confession). The second attorney’s failure to raise the state constitutional claim in the higher court was ineffective assistance of counsel under the Sixth Amendment.

United States v. Peak, 992 F.2d 39 (4th Cir. 1993)

An attorney’s failure to file a notice of appeal is per se ineffective and there is no requirement that the defendant establish prejudice – that is, the defendant need not establish that the appeal would raise meritorious grounds.

Griffin v. United States, 109 F.3d 1217 (7th Cir. 1997)

The failure to file any brief in support of defendant’s appeal is ineffective assistance.

Mason v. Hanks, 97 F.3d 887 (7th Cir. 1996)

Appellate counsel failed to raise on appeal the trial court’s error in permitting the state to introduce hearsay evidence: an informant’s statements that the defendant was dealing drugs. This was ineffective and necessitated granting the writ unless the petitioner was allowed an opportunity to file a new appeal including this issue. Alternatively, the petitioner was entitled to a new trial.

United States v. Nagib, 56 F.3d 798 (7th Cir. 1995)

If the defendant told his lawyer to appeal, and the lawyer dropped the ball, then the defendant has been deprived not of effective assistance of counsel, but of any assistance of counsel on appeal. Abandonment is a per se violation of the Sixth Amendment.

Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994)

Where an attorney fails to file an appeal as requested by the client, this amounts to ineffective assistance of counsel per se. There is no requirement of a showing of prejudice.

Thomas v. O’Leary, 856 F.2d 1011 (7th Cir. 1988)

The defendant won a suppression motion at the trial court, but failed to file any brief in support of this favorable ruling when appealed by the state. The failure to file a brief constitutes ineffective assistance of counsel per se without a showing of prejudice.

United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996)

A defendant has a constitutional right to counsel in pursuit of a new trial motion. Here, the defendant, pro se, claimed that trial counsel was ineffective. The district court required trial counsel to represent the defendant in connection with this motion during the new trial motion. This was an improper procedure. Trial counsel had a clear conflict in pursuing the claim that he was ineffective. The trial court should have appointed substitute counsel to prosecute the new trial motion.

Baker v. Kaiser, 929 F.2d 1495 (10th Cir. 1991)

Following his state court conviction, the defendant expressed a desire to appeal, but no appointed counsel filed the proper notice. The defendant was denied effective assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 387 (1985); Douglas v. California, 372 U.S. 353 (1963).

Abels v. Kaiser, 913 F.2d 821 (10th Cir. 1990)

The defendant was denied the effective assistance of counsel on appeal, because his attorney withdrew and the State refused to provide him with appointed counsel after concluding that the defendant was not indigent. In assessing the prejudice suffered by the defendant by virtue of not being able to appeal his conviction, it is not necessary to assess the merits of any appeal which could have been perfected.

Martin v. United States, 81 F.3d 1083 (11th Cir. 1996)

Where a defendant requests that his attorney file a notice of appeal, even after a guilty plea, if the attorney fails to do so, the defendant is prejudiced and he should thereafter be entitled to file an out-of-time appeal.

Montemoino v. United States, 68 F.3d 416 (11th Cir. 1995)

If an attorney fails to file a notice of appeal following a guilty plea and there is an issue relating to the sentencing guidelines, the defendant may obtain relief based on the ineffectiveness of his attorney. This is an exception to the rule that the failure to file an appeal following the entry of a guilty plea is not grounds for asserting ineffective assistance of counsel. The appropriate remedy is to permit an out-of-time appeal of any sentencing guideline issue.

Orazio v. Dugger, 876 F.2d 1508 (11th Cir. 1989)

Appellate counsel was ineffective because of his failure to appeal the lower court’s denial of the defendant’s motion to proceed pro se. Because of the failure to raise this in the initial appeal, collateral relief was unavailable because of the procedural default.