Teresa Witthar v. United States, 793 F.3d 920

Background

Teresa Witthar pleaded guilty to conspiracy against rights, obstruction of justice, and interference with fair housing; plea agreement included broad waivers of appeal/collateral attack except for limited preserved claims (including ineffective assistance).
The district court sentenced Witthar to 63 months (bottom of advisory guideline range); no direct appeal was filed.
Eleven months later Witthar filed a pro se §2255 petition alleging, among other claims, that her attorney refused to file a requested notice of appeal after sentencing.
The Government produced counsel’s affidavit denying that Witthar asked him to appeal; the district court denied the §2255 claim without an evidentiary hearing, finding Witthar’s allegations conclusory and contradicted by counsel’s affidavit.
On appeal the Eighth Circuit considered whether an evidentiary hearing was required when petitioner and counsel offer conflicting sworn accounts about a requested appeal and whether prejudice is presumed when counsel fails to file a requested appeal despite an appeal waiver.
The court concluded Witthar’s verified allegation alleging she instructed counsel to appeal (and counsel refused) created a material factual dispute and remanded for an evidentiary hearing; the majority applied the presumption of prejudice despite the appellate-waiver.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s failure to file a requested notice of appeal requires an evidentiary hearing when petitioner and counsel give conflicting sworn statements	Witthar: her verified petition alleges she asked counsel to file an appeal after sentencing and he refused, which, if true, entitles her to relief and a hearing	Gov.: counsel’s affidavit denies any request; Witthar’s allegations are bare/conclusory and the record refutes them, so no hearing is necessary	Court: Remand for an evidentiary hearing — conflicting sworn statements with similar specificity require a hearing; district court abused its discretion by denying one
Whether counsel’s failure to file a requested appeal constitutes ineffective assistance per se	Witthar: she was denied effective assistance because counsel failed to file after her instruction	Gov.: (implicitly) dispute that counsel was asked or that Strickland prejudice is presumed given waiver	Held: Failure to file a requested appeal is per se deficient performance; prejudice is presumed (Flores-Ortega line)
Applicability of presumed prejudice where defendant executed an appeal/collateral-review waiver	Witthar: waiver should not defeat relief when counsel refuses to file after instruction	Gov.: waiver and counsel’s affidavit undermine claim	Held: Majority applies presumption of prejudice despite appeal waiver; concurrence disagrees and would require affirmative showing of prejudice under Strickland in waiver cases
Whether the petition was "inadequate on its face" such that it can be dismissed without a hearing	Witthar: verified petition alleges the elements (asked counsel to appeal; counsel refused) and is not facially incredible	Gov.: petition is conclusory and contradicted by counsel’s affidavit	Held: Petition not inadequate on its face; counsel’s contrary affidavit alone insufficient to avoid hearing where specificity is similar

Key Cases Cited

Voytik v. United States, 778 F.2d 1306 (8th Cir. 1985) (standard for conclusory §2255 allegations)
Thomas v. United States, 737 F.3d 1202 (8th Cir. 2013) (evidentiary-hearing preference and review standards for §2255)
Anjulo-Lopez v. United States, 541 F.3d 814 (8th Cir. 2008) (§2255 statutory standard for hearings)
Strickland v. Washington, 466 U.S. 668 (Sup. Ct. 1984) (performance/prejudice framework for ineffective assistance)
Watson v. United States, 493 F.3d 960 (8th Cir. 2007) (presumption of prejudice when counsel fails to file requested appeal; applies despite waiver)
Roe v. Flores-Ortega, 528 U.S. 470 (Sup. Ct. 2000) (counsel’s failure to file a requested appeal is professionally unreasonable and prejudice is presumed)
Barger v. United States, 204 F.3d 1180 (8th Cir. 2000) (no inquiry into prejudice required when counsel fails to file requested appeal)
United States v. Cronic, 466 U.S. 648 (Sup. Ct. 1984) (denial of counsel at a critical stage renders trial presumptively unreliable)
United States v. Sellner, 773 F.3d 927 (8th Cir. 2014) (conflict of sworn statements warrants hearing)
Franco v. United States, 762 F.3d 761 (8th Cir. 2014) (creditability disputes between petitioner and counsel require hearing)