Kevin Walking Eagle v. United States, 742 F.3d 1079

Walking Eagle pled guilty to Continuing Criminal Enterprise under 21 U.S.C. § 848(a)-(c) for drug activity on the Pine Ridge Indian Reservation.
Plea agreement waived most appeals but preserved a right to appeal jurisdictional issues.
In March 2010, Walking Eagle was sentenced to the 20-year mandatory minimum and five years of supervised release.
At sentencing, the court warned Walking Eagle of a 14-day window to file a qualifying appeal and that counsel could not assist him.
Counsel did not file an appeal; Walking Eagle did not contact the clerk’s office.
Walking Eagle later sought relief under 28 U.S.C. § 2255, alleging ineffective assistance for failing to file an appeal, including the Fort Laramie treaty jurisdiction issue.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s failure to file an appeal, when instructed, constitutes ineffective assistance.	Walking Eagle asserts he instructed counsel to appeal and counsel failed to file.	Walking Eagle's counsel credibly testified no instruction to appeal was given; appellate rights discussed but no request made.	No error; district court correctly found no instruction to appeal.
Whether Walking Eagle instructed counsel to appeal on the Fort Laramie treaty issue.	Walking Eagle maintains he told counsel to appeal.	Counsel credibly testified Walking Eagle did not request an appeal and would have filed if asked.	Finding that Walkin g Eagle did not instruct an appeal was not clearly erroneous.
Whether counsel fulfilled the duty to consult about an appeal.	N/A (Walkinger Eagle argues insufficient consultation).	Counsel discussed the right to appeal before and after sentencing and explained chances of success.	Counsel satisfied the duty to consult; the district court’s credibility finding supported this result.

United States v. Apfel, 97 F.3d 1074 (8th Cir. 1996) (collateral review requires cause and prejudice for non-direct-appeal issues)
Frady v. United States, 456 U.S. 152 (Supreme Court 1982) (cause and prejudice standard for defaulted claims on collateral review)
Strickland v. Washington, 466 U.S. 668 (Supreme Court 1984) (test for ineffective assistance of counsel: deficient performance and prejudice)
Barger v. United States, 204 F.3d 1180 (8th Cir. 2000) (failure to file upon client instruction constitutes ineffective assistance; requires manifest instruction to file)
Roe v. Flores-Ortega, 528 U.S. 470 (Supreme Court 2000) (advising about direct appeal as part of consultation duties; prejudice not necessary when failure to file after instruction)
United States v. Davis, 406 F.3d 505 (8th Cir. 2005) (mixed questions of law and fact in ineffective assistance; defer to credibility findings)
Covey v. United States, 377 F.3d 903 (8th Cir. 2004) (standard for evaluating mixed questions of law and fact in ineffective assistance claims)
United States v. Rodriguez, 964 F.2d 840 (8th Cir. 1992) (per curiam credibility considerations in testimony relevant to appeals requests)