United States v. Herring
Opinion of the Court
Lawrence Herring appeals from the denial by the district court of his motion to vacate, set aside, or correct his sentence under
I. BACKGROUND
On May 2, 2016, Herring pled guilty to one count of possession of child pornography pursuant to a plea agreement, which included a waiver of many of Herring's appeal rights, except for his ability to appeal claims of ineffective assistance of counsel. In exchange for Herring's guilty plea, the government agreed to recommend at sentencing a term of incarceration at the low end of the Sentencing Guideline range, which was 78-97 months. The district court sentenced Herring to sixty months' imprisonment. At the sentencing hearing, the district court advised Herring that, despite waiving many of his appellate rights through the plea agreement, he retained the right to appeal under very narrow circumstances. The district court informed Herring that any notice of appeal he wished to file was due fourteen days after the entry of judgment and that, if he requested it, the Clerk of Court would prepare and file a notice of appeal on his behalf. Finally, the district court explained that the court could appoint an attorney for Herring on appeal if he could not afford one.
Judgment was entered in Herring's case on May 5, 2016. That same day, Herring met with his trial counsel. In his section 2255 motion, Herring alleged that he told his attorney "specifically that he wanted to appeal his case," Aplt. Appx. at 34. (Although he concedes on appeal that he did not explicitly command his attorney to file a notice of appeal.) According to the motion, in response, Herring's attorney said that "he did not do appellate work and that he would not be able to do it. ... [Herring's trial counsel] flatly stated [that Herring] had waived [his] right to appeal in the plea agreement and offered no further options other than to contact another attorney."
The trial counsel's account of what happened on May 5 appears in his affidavit in the record. There, he describes the exchange as follows:
I told Mr. Herring that I do not do any appellate work and that he would need to find another attorney on or about May 5, 2016. I sent a request out to a Utah Association of Criminal Defenders Lawyers forum requesting appellate attorneys on or about May 5, 2016. I received a list of attorneys who had Federal appellate expertise. I gave that list to him, and I discussed the case with one of those attorneys, Ann Marie Taliaferro. She indicated that my advice was correct, and he had no appellate rights he could use. I was never asked by Mr. Herring to file an appeal on his behalf.
*1107Herring subsequently filed a
Section 2255(b) instructs district courts: "[u]nless the [2255] motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." Ordinarily, when reviewing the denial of a section 2255 motion, "we review for clear error the district court's factual findings, and we review legal conclusions de novo." United States v. Mora,
II. DISCUSSION
A. If proved, Herring's ineffective assistance of counsel allegations would entitle him to relief
We first consider whether Herring articulated facts in his section 2255 motion that, if proven, would entitle him to relief. See Weeks, 653 F.3d at 1200-02. Herring argues that his attorney rendered ineffective assistance by failing to consult with him about the advantages and disadvantages of filing an appeal. To establish ineffective assistance of counsel, a movant must show (1) that counsel's representation was deficient because it "fell below an objective standard of reasonableness" and (2) that counsel's "deficient performance prejudiced the defense." Strickland v. Washington,
1. Deficient Performance
First, the allegations in Herring's motion demonstrate that his attorney was obligated to consult with him regarding *1108the advantages and disadvantages of filing an appeal but failed to perform that consultation adequately. The Supreme Court has held that, in some circumstances, an attorney is constitutionally required to "consult" with his or her criminal-defendant client about appealing. Roe v. Flores-Ortega,
counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights.
suppose that a defendant consults with counsel; counsel advises the defendant that a guilty plea probably will lead to a 2 year sentence; the defendant expresses satisfaction and pleads guilty; the court sentences the defendant to 2 years' imprisonment as expected and informs the defendant of his appeal rights; the defendant does not express any interest in appealing, and counsel concludes that there are no nonfrivolous grounds for appeal. Under these circumstances, it would be difficult to say that counsel is "professionally unreasonable," as a constitutional matter, in not consulting with such a defendant regarding an appeal.
suppose a sentencing court's instructions to a defendant about his appeal rights in a particular case are so clear and informative as to substitute for counsel's duty to consult. In some cases, counsel might then reasonably decide that he need not repeat that information.
Thus, under Flores-Ortega, a criminal defendant's trial counsel is constitutionally obligated to advise the defendant "about the advantages and disadvantages of taking an appeal, and mak[e] a reasonable effort to discover the defendant's wishes ... when there is reason to think either (1) that a rational defendant would want to appeal ... or (2) that [the attorney's particular client] reasonably demonstrated to counsel that he was interested in appealing."
The government argues that, in order to determine whether a defendant expressed an interest in appealing to his trial counsel, courts should consider the factors listed in Flores-Ortega, such as "whether the conviction follows a trial or a guilty plea," "whether the defendant received the sentence bargained for as part of the plea," and "whether the plea expressly reserved or waived some or all appeal rights."
According to Herring's motion, his trial counsel failed to discharge that duty under Flores-Ortega, because he neither advised Herring "about the advantages and disadvantages of taking an appeal," nor "ma[de] a reasonable effort to discover the defendant's wishes."
If true, that conduct constitutes a failure to consult about an appeal under Flores-Ortega. See Hudson v. Hunt,
The government argues that Herring's attorney was relieved of advising Herring about filing an appeal in this case *1110because Herring received detailed information about his right to appeal from the district court, citing the Supreme Court's suggestion in Flores-Ortega that when "a sentencing court's instructions to a defendant about his appeal rights in a particular case are so clear and informative as to substitute for counsel's duty to consult ... counsel might then reasonably decide that he need not repeat that information."
2. Prejudice
The allegations in Herring's section 2255 motion also demonstrate that Herring was prejudiced by his attorney's deficient performance. To show prejudice in a failure-to-consult case, "a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Flores-Ortega,
In Flores-Ortega, the Supreme Court provided guidance on how to determine whether there is a reasonable probability that a defendant would have timely appealed had he been properly advised by his attorney. First, "evidence that there *1111were nonfrivolous grounds for appeal ... will often be highly relevant," Flores-Ortega,
Construed liberally, Herring's motion to vacate his guilty verdict and sentence supports the inference that Herring would have appealed but for his attorney's failure to consult with him. Herring alleged that he told his attorney "specifically that he wanted to appeal his case" just three days after his sentencing hearing. Aplt. Appx. at 34. Additionally, an affidavit from Herring's attorney in the record before the trial court indicated that the attorney received "a number of document requests after [Herring's] sentencing," id. at 33, which could show at an evidentiary hearing that Herring contacted his attorney to obtain materials for an appeal. Herring also alleged that he expected his attorney to "advise him regarding appeals," id. at 34-35, but that, instead, Herring's attorney "flatly stated [Herring] had waived [his] right to appeal," id. at 18, which Herring asserts explains why he failed to take further action on his own, such as contacting the district court or the Clerk of Court. These facts, if proven, show that the trial counsel's deficient performance prejudiced Herring.
B. The district court abused its discretion by failing to conduct evidentiary hearing
Reviewing Herring's pro se motion liberally, as we must, we conclude the district court abused its discretion when it denied Herring's claim that his attorney had provided ineffective assistance of counsel in relation to the plea agreement without permitting further development of the record. The files and records of the case do not "conclusively show that the prisoner is entitled to no relief."
It bears noting that our decision is not a final determination as to whether Herring's trial counsel was ineffective or that any ineffective assistance caused Herring prejudice. Our remand for a hearing is the next step. As noted above, we must assume at this point that Herring can prove his allegations. The hearing will enable the district judge to consider them along with trial counsel's testimony and any additional evidence the parties wish to present.
III. CONCLUSION
Based on the foregoing, we VACATE the dismissal of Herring's section 2255 motion without an evidentiary hearing, and we REMAND to the district court for an evidentiary hearing and a new determination based thereon.
Specifically, we granted a certificate of appealability on the following issues:
I. Whether Herring's counsel was ineffective for failing to consult with Herring about an appeal when Herring specifically expressed interest in appealing?
II. Whether it is reasonably probable Herring would have appealed if counsel had adequately consulted with him?
III. Whether the district court erred in denying Herring's § 2255 motion without first conducting an evidentiary hearing?
Although he is represented by counsel in this appeal, we review Herring's pro se § 2255 motion liberally. United States v. Weeks,
The motion also alleged that Herring's attorney provided ineffective assistance by failing to file an appeal after Herring expressly directed him to, but that claim is not raised on appeal.
Baker preceded Flores-Ortega, but we find our definition of a consultation consistent with that case. Furthermore, although we cannot rely on Baker to determine whether the duty to consult was triggered in this case because Baker involved a defendant who was convicted by a jury, rather than through a guilty plea, Baker's definition of what it means to advise a defendant about the advantages and disadvantages of filing an appeal is applicable in any case where the duty to consult is found to have been triggered, as we have found here.
See Thompson v. United States,
This recognized that there may be significant non-merits-based reasons why a defendant would want to appeal, such as a plea-negotiation strategy.
Reference
- Full Case Name
- UNITED STATES of America v. Lawrence Paul HERRING
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- 78 cases
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- Published