935 F.3d 1102
10th Cir.2019Background
- Herring pleaded guilty (May 2, 2016) to possession of child pornography under a plea that waived many appeal rights but preserved ineffective-assistance-of-counsel claims; the guideline range was 78–97 months, and the court sentenced him to 60 months.
- At sentencing the court advised Herring of appeal procedures, the 14-day deadline, and that the Clerk or appointed counsel could file an appeal if requested.
- Judgment entered May 5, 2016; Herring alleges that on that day he told his trial attorney he wanted to appeal, but counsel said he did not do appellate work, gave a list of appellate attorneys, and did not advise on advantages/disadvantages or file a notice of appeal.
- Trial counsel submitted an affidavit saying he told Herring he did not do appellate work, provided a list of appellate attorneys, consulted another attorney who said there were no appellate rights, and was never asked to file an appeal.
- Herring filed a pro se 28 U.S.C. § 2255 motion claiming ineffective assistance for failure to consult about an appeal; the district court dismissed without an evidentiary hearing.
- The Tenth Circuit granted COA limited to whether counsel was ineffective for failing to consult, whether Herring would likely have appealed, and whether the district court erred by denying a § 2255 hearing; it vacated and remanded for an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was constitutionally required to consult about an appeal when Herring expressed interest | Herring says he told counsel he wanted to appeal and counsel failed to advise on pros/cons or make reasonable efforts to learn Herring's wishes | Govt/attorney point to the plea-waiver and the district court's sentencing advisal as relieving counsel of further consultation | Court: Flores-Ortega duty triggered because Herring reasonably demonstrated interest; counsel had to consult and did not adequately do so |
| Whether counsel's failure to consult was deficient performance | Herring: counsel only said he didn’t do appellate work and referred Herring to other attorneys without discussing merits or strategy | Govt: sentencing court’s clear advisal and plea-waiver information could substitute for counsel's duty | Court: Allegations, if proven, show deficiency—trial counsel cannot outsource the duty and district advisal was not specific enough to substitute for counsel's consultation |
| Whether prejudice is shown (would Herring have timely appealed?) | Herring alleges he promptly expressed desire to appeal, sought post-sentencing documents, and relied on counsel's statement that his rights were waived | Govt argues absence of a filed appeal and counsel's affidavit showing advice and no request to file weigh against prejudice | Court: Under Flores-Ortega a reasonable probability of appeal is shown if proven; allegations suffice to presume prejudice and warrant a hearing |
| Whether the district court erred by denying an evidentiary hearing on the § 2255 motion | Herring: the record does not conclusively refute his factual claims and he is entitled to develop evidence | District court dismissed on the record without hearing | Held: District court abused its discretion by denying a hearing because the files and records do not conclusively show no relief; remand for evidentiary hearing required |
Key Cases Cited
- Roe v. Flores-Ortega, 528 U.S. 470 (duty to consult about appeal; standard for when consultation is required)
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance two-prong test)
- Garza v. Idaho, 139 S. Ct. 738 (attorney must file notice when client requests appeal; prejudice presumed)
- United States v. Weeks, 653 F.3d 1188 (10th Cir.) (standard for reviewing denials of § 2255 and liberality to pro se filings)
- United States v. Mora, 293 F.3d 1213 (10th Cir.) (standard of review for § 2255 factual findings)
- Hudson v. Hunt, 235 F.3d 892 (4th Cir.) (holding counsel ineffective where counsel merely refused to handle appeal and gave no advice)
- Baker v. Kaiser, 929 F.2d 1495 (10th Cir.) (counsel must advise about whether meritorious grounds for appeal exist)