937 F.3d 671
6th Cir.2019Background
- Timothy Neill pleaded guilty in 2011 to being a felon in possession of a firearm (18 U.S.C. § 922(g)) and was sentenced to 92 months, consecutive to an earlier state parole-violation sentence.
- At sentencing the judge commented Neill would likely receive credit for time in federal custody pre-sentencing; that credit was in fact unavailable because those 13 months were credited to his state sentence under 18 U.S.C. § 3585(b).
- Defense counsel Benjamin Perry consulted with Neill after sentencing and advised against appeal, warning that an appeal could expose two omitted prior felonies in the PSR, possibly produce consecutive sentences, or trigger Armed Career Criminal status (longer mandatory term).
- Neill later filed Rule 36 and § 2255 motions asserting ineffective assistance of counsel for Perry’s appellate advice and for failing to correct the judgment’s credit; the district court denied relief but issued a certificate of appealability on the ineffective-assistance claim.
- The Sixth Circuit affirmed, holding that even assuming counsel’s advice was deficient, Neill failed to show prejudice—i.e., a reasonable probability he would have pursued an appeal given the low likelihood of success and the substantial risk of a longer sentence on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Flores‑Ortega permits review of counsel’s advice when defendant declined to appeal based on that advice | Neill: Flores‑Ortega permits inquiry into whether counsel’s consultation was constitutionally adequate and whether advice rendered the decision not to appeal unknowing | Government/Perry: Once counsel consulted and defendant declined, Flores‑Ortega forecloses inquiry into the substance of the advice (avoid bright‑line review) | Court declined to adopt the government’s bright‑line rule but did not need to resolve the question because the case fails on prejudice |
| Whether Perry’s appellate advice was constitutionally deficient | Neill: Perry misadvised by failing to raise the judge’s credit statement and overstating risks (ACC classification, consecutive sentences) | Government/Perry: Advice was reasonable trial strategy—counsel warned of legitimate risks from omitted priors; consultation occurred | Court assumed, for argument’s sake, that advice could be deficient but resolved the case on prejudice |
| Whether Neill showed prejudice (reasonable probability he would have appealed) | Neill: If correctly advised, he would have appealed to challenge the credit statement and shorten his sentence | Government: Success on appeal was unlikely; even success could trigger resentencing with higher exposure due to omitted priors and ACC risk—so no reasonable probability of appealing | Held: No reasonable probability Neill would have appealed; contemporaneous evidence and sentencing judge’s statements suggest low prospects and substantial risk of a longer sentence on remand; affirmed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑pronged deficiency and prejudice test for ineffective assistance of counsel)
- Roe v. Flores‑Ortega, 528 U.S. 470 (2000) (counsel must consult about an appeal when a rational defendant would want to appeal; presumption of prejudice if counsel fails to file a requested appeal)
- Lee v. United States, 137 S. Ct. 1958 (2017) (evaluate contemporaneous evidence and defendant’s particular stakes to determine whether inaccurate advice caused prejudice to appeal/plea decisions)
- Mallett v. United States, 334 F.3d 491 (6th Cir. 2003) (standard of review for § 2255 factual findings and mixed questions of law and fact)