United States v. Stacey Sellner
2014 U.S. App. LEXIS 23486
8th Cir.2014Background
- Sellner pleaded guilty to conspiracy to distribute and possess with intent to distribute methamphetamine; judgment entered March 8, 2013.
- Her attorney did not file a notice of appeal after sentencing.
- In July 2013, Sellner filed a pro se § 2255 motion alleging ineffective assistance of counsel, including failure to file an appeal.
- The attorney affidavit claimed Sellner chose not to appeal after discussion, despite Sellner’s claim she asked to appeal.
- In November 2013, Sellner filed a second pro se § 2255 motion raising a new claim under Alleyne; district court dismissed July motion on merits and November motion as second or successive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the district court abuse its discretion by denying an evidentiary hearing on the notice-of-appeal claim? | Sellner contends an evidentiary hearing was necessary to resolve conflicting affidavits. | Government argues no hearing necessary; affidavits suffice. | Yes, abused; remanded for evidentiary hearing on the appeal-notice claim. |
| Should the November motion be construed as a motion to amend the July motion rather than as second or successive under AEDPA? | Sellner's November motion should amend the pending July motion, not be barred as second or successive. | Government argues it is a second or successive § 2255 motion. | Yes, should be construed as a motion to amend the July motion; not barred by AEDPA. |
| Is the appropriate relief on remand for the amendment issue (and related evidentiary hearing) proper here? | An evidentiary hearing is needed to adjudicate whether consent to appeal was requested and withheld. | Not specifically challenged beyond AEDPA/filing-pleading concerns. | Remand for an evidentiary hearing and for recharacterization as amendment. |
Key Cases Cited
- Watson v. United States, 493 F.3d 960 (8th Cir. 2007) (ineffective assistance for failure to file appeal; prejudice not required)
- Roe v. Flores-Ortega, 528 U.S. 470 (Supreme Court 2000) (prejudice framework for failure to file appeal)
- Franco v. United States, 762 F.3d 761 (8th Cir. 2014) (crediting conflicting affidavits; evidentiary hearing required)
- Ching v. United States, 298 F.3d 174 (2d Cir. 2002) (second § 2255 motion before adjudication should be construed as amendment)
- KosKela v. United States, 235 F.3d 1148 (8th Cir. 2001) (district court must hold evidentiary hearing when credibility is at issue)
- Erickson v. Pardus, 551 U.S. 89 (2007) (pro se filings liberally construed)
- Estelle v. Gamble, 429 U.S. 97 (1976) (liberal construction of pro se filings)