Ashly Nupdal v. United States
666 F.3d 1074
8th Cir.2012Background
- Nupdal pled guilty to one count of distribution and possession with intent to distribute controlled substances under 21 U.S.C. § 846, in exchange for dismissal of two counts.
- Her plea agreement contained an appeal waiver, but expressly reserved the right to appeal claims of ineffective assistance of counsel.
- At sentencing, the district court advised Nupdal of her right to appeal and that an appeal must be filed within ten days.
- Nupdal did not appeal, instead moving to vacate roughly 11 months later on the claim that counsel failed to file an appeal per her instructions.
- The district court held a hearing, credited Nupdal’s testimony that she did not direct an appeal, and denied the § 2255 motion.
- On appeal, the court reviewed de novo the ineffective-assistance issue and upheld the district court’s credibility determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to file an appeal after client instruction is per se ineffective aid | Nupdal contends she directed appeal. | Nupdal’s testimony or parental testimony show no instruction to appeal. | Per se ineffectiveness if instruction is shown |
| Whether the district court clearly erred in finding no instruction to appeal | Affidavit supports directing appeal. | Hearing testimony credits no instruction to appeal. | No clear error; credibility findings upholding no instruction |
| Whether Nupdal was denied an adequate evidentiary hearing | Attorney’s testimony essential; cross-examination denied. | Failure to subpoena or need for attorney testimony not prejudicial. | Not denied; hearing adequate given conclusive witness testimony |
Key Cases Cited
- Bass v. United States, 655 F.3d 758 (8th Cir. 2011) (ineffective-assistance de novo review; underlying facts clear error)
- United States v. Regenos, 405 F.3d 691 (8th Cir. 2005) (standard for ineffective assistance in post-conviction review)
- Barger v. United States, 204 F.3d 1180 (8th Cir. 2000) (attorney’s failure to file appeal upon instruction constitutes relief)
- Strickland v. Washington, 466 U.S. 668 (Supreme Court 1984) (deficient performance and prejudice required for ineffective assistance)
- Rodriguez v. United States, 964 F.2d 840 (8th Cir. 1992) (trial court credibility determinations in evidentiary hearings)