23 F. Supp. 3d 9
D.D.C.2014Background
- Defendant Soomai pled guilty in 2007 to conspiracy to manufacture and distribute five kilograms or more of cocaine and one kilogram or more of heroin into the United States.
- He moved under 28 U.S.C. § 2255 claiming ineffective assistance of counsel because trial counsel did not file an appeal despite Soomai's request.
- The government contends Soomai never asked counsel to file an appeal and no deficient performance occurred.
- An evidentiary hearing was held to resolve factual disputes about whether Soomai requested an appeal.
- Soomai’s sentence was 151 months, with the plea agreement guiding the contested guideline range; he argued for a longer expectation of ten years.
- The court evaluated whether trial counsel’s failure to file a notice of appeal, given a request, would constitute a Strickland/Flores-Ortega violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel's failure to file an appeal, upon request, constitutes deficient performance | Soomai asserts he asked Bos to appeal and Bos failed to file. | Soomai contends Bos disregarded his explicit appeal instruction, constituting ineffective assistance. | Denied; Soomai did not prove he asked for an appeal by a preponderance. |
Key Cases Cited
- McMann v. Richardson, 397 U.S. 759 (U.S. 1970) (right to effective assistance of counsel)
- Roe v. Flores-Ortega, 528 U.S. 470 (U.S. 2000) (duty to consult about appeal when instructed)
- Flores-Ortega v. United States, 528 U.S. 470 (U.S. 2000) (counsel must file or consult about appeal if instructed)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong standard for ineffective assistance)
- Taylor v. United States, 339 F.3d 973 (D.C. Cir. 2003) (factors for consulting about appeal when no direct instruction)
- United States v. Pollard, 602 F. Supp. 2d 165 (D.D.C. 2009) (burden of proof in §2255 proceedings; standard of review)