Zvonko Sarlog v. United States
422 F. App'x 399
6th Cir.2011Background
- Sarlog pleaded guilty to conspiracy to distribute and possess with intent to distribute cocaine and to launder money.
- The district court discussed §5C1.2 safety valve, and enhancements for managerial role (§3B1.1) and abuse of trust (§3B1.3) at sentencing.
- The court indicated Sarlog would be ineligible for safety valve if a managerial role was found, influencing the sentence.
- Paragraph 13 of the plea agreement stated Sarlog expressly waives rights to appeal except certain rights; the court later explained the waiver, and Sarlog affirmed understanding.
- Sarlog received a 121-month sentence on each count, no direct appeal was filed, and his §2255 motion asserted ineffective assistance for failing to file an appeal, for failing to consult on appeal, and for failing to call co-conspirators as witnesses.
- The district court denied the §2255 motion, concluding waiver covered collateral attacks and that enhancements were not cognizable on collateral review; this court vacated and remanded for an evidentiary hearing on whether Sarlog instructed counsel to file a notice of appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did counsel fail to file a notice of appeal after Sarlog instructed him? | Sarlog | Sarlog | Remanded for evidentiary hearing on instruction to appeal |
| Did counsel's failure to consult regarding appeal amount to ineffective assistance? | Sarlog | Sarlog | Remanded for evidentiary hearing on consultation duty |
| Was counsel ineffective for failing to call co-conspirators to dispute managerial role? | Sarlog | Sarlog | Remanded for evidentiary hearing on witness calling |
| Was Sarlog’s waiver of appellate rights knowing and voluntary given the court’s misstatements? | Sarlog | United States | Waiver not knowing/voluntary; right to appeal preserved for certain issues |
Key Cases Cited
- Roe v. Flores-Ortega, 528 U.S. 470 (Supreme Court 2000) (two-pronged test for ineffective assistance for failure to file an appeal)
- Ludwig v. United States, 162 F.3d 456 (6th Cir. 1998) (failure to file appeal grounds in certain contexts)
- Turner v. United States, 183 F.3d 474 (6th Cir. 1999) (evidentiary hearing standards under §2255)
- Arredondo v. United States, 178 F.3d 778 (6th Cir. 1999) (mandatory hearing when factual disputes exist in §2255)
- Valentine v. United States, 488 F.3d 325 (6th Cir. 2007) (evidentiary hearing warranted on §2255 affidavits lacking counter-evidence)
- Padilla-Colon, 578 F.3d 23 (1st Cir. 2009) (unknowing/invalid waiver when court misstates appellate rights before plea)
- Grant v. United States, 72 F.3d 503 (6th Cir. 1996) (waivers and collateral attack considerations in §2255 context)
- Jones v. United States, 178 F.3d 796 (6th Cir. 1999) (counsel ineffective where applicable to appellate rights)
- United States v. Poindexter, 492 F.3d 263 (4th Cir. 2007) (circuit split on appeal-waiver effect)
- United States v. Mabry, 536 F.3d 231 (3d Cir. 2008) (appeal-waiver considerations in plea agreements)