Fred Dowell v. United States
2012 U.S. App. LEXIS 19453
| 7th Cir. | 2012Background
- Dowell signed a plea agreement reserving the right to appeal a career-offender designation if the district court found it at sentencing.
- The district court found Dowell to be a career offender under § 4B1.1 and imposed an 180-month sentence.
- Dowell did not file a timely direct appeal; he later claimed his counsel failed to file an appeal he requested regarding the career-offender issue.
- The plea agreement also included a waiver not to contest conviction or sentence in collateral attacks, except for the career-offender issue.
- Dowell filed a § 2255 motion asserting ineffective assistance of counsel for failing to file the directed appeal; the district court denied relief based on the waiver.
- The Seventh Circuit remands to determine whether Dowell actually instructed his counsel to appeal the career-offender issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the collateral-review waiver bar relief when the issue on direct appeal was reserved for appeal? | Dowell asserts the waiver does not bar because the career-offender issue was reserved for direct appeal. | Government argues waiver covers collateral attacks and forecloses relief. | Waiver does not bar collateral relief for a reserved direct-appeal issue; remand for facts. |
| Does ineffective assistance arise when counsel fails to file an appeal Dowell expressly directed? | Dowell contends counsel's failure to file the directed appeal constitutes per se ineffective assistance. | Waiver precludes relief and merits of the appeal are unexamined here. | Counsel's failure to file a directed appeal on a reserved issue can be per se ineffective assistance; relief warranted. |
| Should the district court resolve, on remand, whether Dowell instructed counsel to appeal the career-offender issue? | Dowell provided sworn statements that he instructed counsel to appeal. | Conflicting statements by counsel create factual questions for the district court. | Remand for the district court to resolve whether Dowell instructed counsel to file the appeal. |
Key Cases Cited
- Roe v. Flores-Ortega, 528 U.S. 470 (2000) (per se ineffective assistance when attorney does not file a directed appeal)
- Peguero v. United States, 526 U.S. 23 (1999) (collateral review unavailable when no merit challenge on direct appeal)
- Gant v. United States, 627 F.3d 677 (7th Cir. 2010) (direct appeal must be pursued when directed by defendant)
- Alcala v. United States, 678 F.3d 574 (7th Cir. 2012) (plea waiver of direct and collateral review generally enforceable)
- Keller v. United States, 657 F.3d 675 (7th Cir. 2011) (limited exceptions to enforceability of waiver)
- Sakellarion v. United States, 649 F.3d 634 (7th Cir. 2011) (validity of voluntary waiver and exceptions in direct/collateral review)
- Quintero v. United States, 618 F.3d 746 (7th Cir. 2010) (waiver interpretation and collateral-review scope)
- Barnett v. United States, 415 F.3d 690 (7th Cir. 2005) (plea bargains include implicit terms necessary to meaningful appeal rights)