Teresa Witthar v. United States

GRUENDER, Bеfore WOLLMAN and GRITZNER,1 Judges, and Circuit District Judge.

PER CURIAM. petitioned Teresa Witthar for relief un- § arguing der 28 U.S.C. that she was denied effective assistance of counsel when attorney her failed to file a requested no- appeal. tice of The district court denied petition on the merits without evidentiary hearing. reverse and re- mand. pleaded guilty

Witthаr to conspiracy against rights, justice, obstruction of fair housing rights. interference with 241, 1512(b)(1); §§ 18 U.S.C. 42 U.S.C. plea agreement, 3631. Witthar waived her to appeal collaterally or finding guilt. attack a She further collaterally waived her or attack her on ground except: sentence counsel, ineffective assistance of misconduct, рrosecutorial sentence imposed statutory excess of the maxi- mum, illegal sentence. ex- change, agreed the Government to advo- cate for a sentence at the bottom of her advisory guidelines range, to dismiss indictment, four other counts of the and to bringing charges refrain from additional related to her crimes. The district court imprison- sentenced Witthar to 63 months’ ment, a sentence at the bottom of her advisory guidelines range. No fol- lowed. later, pro months filed a

Eleven Smith, Kirkwood, MO, L. ar- Andrea petition alleg- se under 28 U.S.C. gued, appellant. for of ineffective as- ing, among other claims sistance of that her had Counts,

Lajuana Atty., M. Asst. U.S. failed tо file a notice of MO, City, argued (Tammy Dickin- Kansas son, Ketchmark, Witthar claimed asked Atty., David M. Asst. U.S. brief), Atty., sentencing, after appellee. on the to file Gritzner, Iowa, sitting by designation. E. Honorable ‍‌‌‌​‌​​​​​‌‌​‌‌​‌‌​‌​‌‌​‌​‌​​​​​​​​‌‌‌​​‌‌‌​‌‌​​‍James Judge States District for the Southern District merits, claim on its which is with her about it tion of the speak but he “refused” ” case finished with that we review de novo.’ legal [her] he was conclusion and “said The district court or Thomas, that was it.” 737 F.3d at 1206 Noe why- to show cause the Government dered and, in re granted, not be

relief should 2010)). submitted an affi sponse, petitioner claims ineffec When attorney stating that davit from Witthar’s of tive assistance ap him to file an not asked Witthar had per that her must establish: counsel’s argued also The peal. objective standard “fell below an formance factually deficient petition was Witthar’s and that she suf of reasonableness” conclusory alle only it presented because v. as a result. Strickland prejudice fered States, Voytik v. United 778 gations. See 668, 687-88, 694, 104 Washington, 466 U.S. (8th Cir.1985). 1306, dis 1308 (1984). 2052, 674 An 80 L.Ed.2d S.Ct. § 2255 failure- trict court denied Witthar’s attorney’s requested appeal failure to file a conducting evi- claim without to-appeal automatically deficient-per satisfies hearing it found that dentiary because it is prong formance of Strickland because “bare, conclusory allegations” unreasonable.” Watson v. “professionally The court entitle her to relief. did not (8th States, 960, 963 493 F.3d her other ineffective assis denied relief on 2007) they Flores-Ortega, (quoting counsel claims either because Roe v. 528 tance of 1029, her waiver of collateral precluded 470, 483, were 120 145 L.Ed.2d U.S. S.Ct. attack or because she did not make (2000)). “This is so because a defen 985 showing performance of deficient required counsel to initiate an dant who instructs prejudice. and counsel,” reasonably upon relies inat and counsel’s “failure to file reflects us, challenges Before tention to the defendant’s wishes.” her only the district court’s resolution of 477, 120 Flores-Ortega, 528 U.S. at S.Ct. regarding claim counsel’s failure to file the if an fails to honor 1029. And that the requested appeаl. She contends request, the defendant forfeits by denying relief without hold court erred at appellate proceeding. to an evidentiary “Evidentiary ing 483,120 S.Ct. are hearings on 28 U.S.C. 2255 motions general rule is that a preferred, and prejudice is re showing No of necessary hearing prior is to the motion’s quired unique in this circumstance. Bar- dispositiоn if a factual exists.” States, 1182 ger United States, Thomas v. United (8th Cir.2000) (noting inquiry that “no into denied, Cir.2013), cert. 572 U.S. 1206 on appeal [is] success -, 189 L.Ed.2d 198 An necessary”). attorney’s failure to file (2014). A “is entitled to an evi- requested appeal amounts to the denial dentiary hearing ... unless ‘the motion stage counsel’s assistance at a critical and the files and the records of the case judicial proceeding. United States conclusively show is entitled [she] ” Cronic, 648, 659, 104 466 U.S. S.Ct. States, Anjulo-Lopez relief.’ (1984). L.Ed.2d 657 And when a defen denied, actually or dant is either construc 2255(b)). review a dis U.S.C. “We “ assistance, adversary ‘the tively, such deny trict court’s an evidentia- decision unrelia process presumptively itself [is] discrеtion; ry hearing for abuse of howev ” at Flores-Ortega, ble.’ 528 U.S. er, obligated we are ‘to look behind that (alteration original) (quoting discretionary rejec- court’s decision S.Ct. 2039). Cronic, affirmatively S.Ct. record refutes the factual as- require based.”). The court thus does not an affir- sertions upon which it is showing prong mative on the second оf disagree with the court’s determination. Instead, prejudice pre- Strickland. matter, As an initial the district sumed. Id. court erred when it held that Witthar’s many circuits, of our sister Like inadequate on its face. Witt- extend the even har’s pro petition verified se set forth the to cases which the has waived necessary elements of her ineffective assis Watson, 493 F.3d at tance of counsel claim: she instructed 960;2 accord Campbell v. United her trial to file an (6th Cir.2012); Unit he failed to do so. Because failure to file a Poindexter, ed States v. 268- requested appeal performance is deficient (4th Cir.2007); Tapp, presume prejudice, because we these (5th 263, Cir.2007); 491 F.3d 265-66 Cam allegatiоns alone are sufficient to States, pusano v. United 442 F.3d Watson, warrant a hearing. See 493 F.3d (2d Cir.2006); 772-77 Gomez-Diaz 964; (“[A]n Barger, 204 F.3d at 1181-82 States, (11th United 433 F.3d 791-94 attorney’s failure to a appeal file notice of Cir.2005); United States v. Sandoval-Lo after being instructed to do by so his client (9th Cir.2005); 1195-99 pez, constitutes ineffective assistance entitling Garrett, petitioner relief, to sеction inquiry no (10th Cir.2005). We have rea into appeal success on soned that perspective ‘limited of “[t]he being necessary.”). And the district court appropriate collateral review* is not the only contradictory the affidavit from vantage point from which to assess wheth Witthar’s to discredit her allega er petitioner] might any [a meritori tions. ous issues that can appeal be raised on When a district court receives Watson, spite of waiver.” [a] 493 F.3d at conflicting statements—one from a Garrett, 1267). 402 F.3d at petitioner and one from her former coun Accordingly, if the evidence that a shows sel—the court cannot a factual “mak[e] askеd counsel to and refused, counsel the determination petitioner is entitled based on the relative ‍‌‌‌​‌​​​​​‌‌​‌‌​‌‌​‌​‌‌​‌​‌​​​​​​​​‌‌‌​​‌‌‌​‌‌​​‍credi relief, even if appel bility she has waived that of without [these individuals] the late right. benefit evidentiary hearing.” of an Franco States, (8th v. United district court denied Witthar Cir.2014). facially If neither statement is hearing relief without a because it deter- speci incredible and both contain “similar only mined that Witthar raised bare alle- ficity” regarding alleged appeal- when the gations of performance, deficient (or request place conversations “took did court noted that the affidavit submitted 764-65, not take place),” id. at counsel’s trial Witthar’s counsеl disputed claims. States, contrary simply See Shaw v. statement “is insufficient United (8th Cir.1994) (“[A] support finding petitioner’s] a may [the be allegations dismissed without an evidentiary hearing accepted if cannot be as true.” inadequate Sellner, the claim is on its face or if the United States v. Though Watson, ing presumption prejudice. in Watson con- of Instеad, ceded that the case should be remanded to 493 F.3d at 963-64. we evaluated evidentiary hearing, arguments the district court for and reached conclusion inde- rely we did pendent not on this concession in extend- of this concession. GRUENDER, standard, Judge,

(8th Cir.2014). Circuit Judged by this concurring. sufficed to war- sworn statement petition, In her Witthar rant a precedent, I concur. I light In of our “asked to file [her] that she said howbver, agree because I separately, write [her],” but he “refused.... circuits that hold that with two finished with case [her] he was said [and] inappropriate presumption is nei- it.” This statement was agreed when a defendant has waive facially self-contradictory nor less ther or сollateral- appellate some or all of her attorney’s account credible than Nunez v. rights. review See addition, filed. why was Cir.2008); 546 F.3d 450 some information re- provided (3d Mabry, 536 F.3d 231 States v. the relevant conversation garding 2008). when situations, I instead would these noting that she discussed the place, took framework from apply the traditional attorney “after [she] matter with her Washington, 466 Strickland v. attorney simply denied sentenced.” Her (1984), 80 L.Ed.2d occurred. These that such a conversation showing preju- require some affirmative specificity. contain similar two statements dice. Sellner, (finding 773 F.3d at 929-30 prej explains, presume As the court al- specificity similar when because we have despite udice waivers follow- lеged that she log that this is the concluded ing sentencing and her said the Flores-Ortega, ical ‍‌‌‌​‌​​​​​‌‌​‌‌​‌‌​‌​‌‌​‌​‌​​​​​​​​‌‌‌​​‌‌‌​‌‌​​‍extension of Roe v. 528 forego appeal);3 had decided to 145 L.Ed.2d 985 1G2,

Franco, (finding at F.3d similar (2000). States, 493 Watson v. United F.3d petitioner alleged that specificity when . (8th Cir.2007) Flores-Ortega, 964 sentencing” an “after requested he however, “did not address whether this attorney said he did not recall has [presumed-prejudiee] principle request). receiving this Because Witthar’s controls, force, where the defen let alone true, if allegations, amounted to ineffective to appellate dant has waived [her] there a factu- assistance existed Mabry, 536 F.3d and collateral review.” al on a critical The district issue. And, writing at 240.' were I on a blank by denying its court thus abused discretion slate, I that the Flores- would conclude Sellner, hearing. her relief without a principle not extend so far. Ortega should at 930. presump The rationale for the blanket reasons, in foregoing For the vacate the tion of announced Flores- a defen Ortega order of the district court and remand for makes little sense when appel or all of her evidentiary hearing.4 an dant has waived some Sellner, evidence to our court the Government conceded at oral Witthar submitted this argument along reply grant We that the case should be remanded with her brief. the evidentiary hearing. an 773 F.3d at 929. and note that Government’s motion to strike concession, relying rely reaching on this we deter- in Without we did not on this evidence ONEOK, mined that the district court abused its discre- conclusion. See our Schaffart (refus- Inc., (8th Cir.2012) by denying tion relief without a 470 at 930. ing to consider new evidence submitted on provide appeal when the evidence did “not [submitting support . any additional for the 4. The Government has moved a let- to strike ancj arguments, injustice party’s] [was] allegedly supports ter that Witthar's omission”). by done [its] she instructed her 925 rights. sentencing-guidelines In Flores- to rescind a reduc- or collateral-review late emphasized Nunez, that coun Ortega, the Court tion under USSG 3E1.1. to file a notice of sel’s failure logic F.3d at 455. It defies to presume the defendant of an “en appeal deprived prejudice when pursue counsel’s failure to namely, review judicial proceeding,” tire a futile appeal spares nega- his client these at appellate court. 528 U.S. potential consequences. tive at See id. case, however, it 1029. In a waiver S.Ct. 455-56. but the defendant who for is not counsel Even circuits that presume prejudice de meaningful re appellate feits the spite acknowledge waiver This is so because when a defendant view. absurdity and the inevitable waste of time knowingly intelligently waived this has that follows. See United States Poid right, our court enforces the waiver unless exter, (4th Cir.2007) justice miscarriage would result. (“[MJost successful movants Andis, 889- appeal waiver situation obtain little more (8th Cir.2003) (en banc). thus rou opportunity than an to lose at a later appeals based on waived tinely dismiss . date.”); Campusano v. United grounds (2d Cir.2006) (“Admittedly, appeals, Beсause we dismiss these applying Flores-Ortega presumption overly protec- post-waiver situations will bestow on most all, After a defendant has tive. more than an nothing opportu defendants nothing gain by filing on a lose.”); nity to United States Sandoval- does, however, ground. waived She Lopez, 409 F.3d Nunez, something to lose. See “contrary (rеferring application to this (noting the unfiled sense”). In light to common of this situa Flores-Ortega was one in which the defen- (emphasis tion, “gain presume prejudice dant could but not lose” I would decline to s added)). many plea agreements, require and instead who ha concessions in ex- Government makes rights waived these to make а traditional guilty plea for a change defendant’s in prejudice showing as outlined Strick waivers, dismissing related such as counts land. agreeing bring or not additional A defendant who has waived the charges. A breach of the defendant’s appeal or seek collateral review could dem- promise appeal not to or seek collateral ways. in prejudice onstrate several For places the conces- review Government’s instance, appeal could show that her she in jeopardy. sions The Góvernment could because would not been dismissed bring counts or seek reinstate dismissed knowing voluntary. her waiver was not or charges additional related to the' defen- Andis, 333 F.3d at 890. Or she could underlying dant’s acts. See United States justice miscarriage demonstrate that a Britt, v. from enforce- would have resulted waiver 1990) (finding Jeopardy no Double Clause addition, she ment. See id. at 891. when, following a

violation defendant’s requested identify could some basis for her plea agreement, brеach of a the court set scope that of her appeal falls outside guilty plea aside the defendant’s id. at 890. If the defendant waiver. See charges). Government filed more serious circumstances, any alleges of these addition, bringing a waived or court would need to conduct a hear- collateral ‍‌‌‌​‌​​​​​‌‌​‌‌​‌‌​‌​‌‌​‌​‌​​​​​​​​‌‌‌​​‌‌‌​‌‌​​‍attаck could demonstrate to ing. See Roundtree accepted court that the defendant has not (noting that a responsibility thereby -and allow the court F.3d pre- I not by precedent, to hold an eviden- cumbered would required court district regarding ineffective-as- tiary hearing prejudice sume on this record.5 unless the record сonclu- sistance that counsel did either

sively establishes deficiently that the or defen- perform

not result). no

dant suffered standard, proposed by this Witt-

Judged did not entitle her to a allegations

har’s from alleged

hearing. She attorney’s failure to file the re-

her trial did not She

quested appeal. knowing and volun- waiver suggest that its enforce-

tary, nor did miscarriage jus- in a result

ment would allege not she did tice. And MACQUARIE LIMITED, BANK challenged would have requested Plaintiff-Appellant preserved of the four on one her sentence assistance of bases: ineffective Macquarie Corp., Americas Plaintiff misconduct, a sentence prosecutorial statutory maxi- of the

imposed excess mum, illegal sentence. As the observed, court district Bradley KNICKEL; Energy, D. LexMac identify any ground for her petition did not L.P.; Energy, Inc.; Op Lexar Novus Indeed, Witthar has requested appeal. erating L.P., Cоmpany, Defendants- single ground nonfrivolous not identified Appellees of her for the filings. Inc.; Services, KHL, Mineral Land Witthar, many appeal-waiver like

And Inc., Defendants defendants, much ‍‌‌‌​‌​​​​​‌‌​‌‌​‌‌​‌​‌‌​‌​‌​​​​​​​​‌‌‌​​‌‌‌​‌‌​​‍to lose. Both the plea agreement

plain language of show that the Government precedent our LLC, Macquarie Barnett, Third charges or at- сould have filed additional Party Defendant-Appellant reinstate the four dismissed tempted to sentencing hearing a new counts. Were Macquarie Limited, Bank occur, could have refused the Government Plaintiff-Appellee. imprisonment to advocate for a term of guidelines range, of her bottom Macquarie Corp., Plaintiff Americas the court could denied Witthar acceptance offense-level reduction for contrast, responsibility. Witthar likely Energy, L.P.; Energy, LexMac Lexar nothing gain: summary .a dismissal Inc.; Operating Company, certainly Novus would have followed her

almost L.P., Defendants-Appellants I unen- appeal on waived basis. Were day attempt preserve plea question the benefits of the I leave for another whether Nunez, agreement performance regard- be for his client. trial counsel's should Cf. not lend per ed he to a file a at 453-56. The facts of this case do se deficient if declines ground analysis. appeal on a waived in an themselves

Case Details

Case Name: Teresa Witthar v. United States

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 17, 2015

Citation: 793 F.3d 920

Docket Number: 14-1612

Court Abbreviation: 8th Cir.