Appellate Waivers and IAC

Zvonko Sarlog v. United States, No. 09--3033 (6th Cir. Jan. 7, 2011) (unpublished). Panel of Judges Boggs, McKeague, and Quist (W.D. Mich.).

2255 case.

District court denied the 2255. Claim was IAC: failure to file notice of appeal. Petitioner claimed he'd requested an appeal. Petitioner also claimed IAC for counsel's failure to argue properly against certain guideline enhancements.

Court of Appeals remanded for evidentiary hearing.

Petitioner's plea agreement had broad appellate waiver. But when the court explained the provisions during the plea hearing, the court misspoke. The court told the petitioner he would be able to challenge certain potential GL enhancements on appeal if the sentencing court applied them. Neither party objected to the explanation of these appellate rights.

The sentencing court applied the enhancements, but granted a downward variance. No direct appeal filed. Petitioner filed pro se 2255. District ct denied the motion without an evidentiary hearing.

Rule re Hearings: Petitioners are entitled to prompt hearings unless unless record is clear that the petitioner is not entitled to relief. Burden for establishing entitlement is relatively light.

Rule on IAC and Appeals: Duty to file if client requests. Counsel may have duty to consult, even if client has not requested an appeal.

Issue 1: Petitioner argued that it's IAC to fail to file a notice of appeal and/or consult re an appeal even if there's an appellate waiver. Circuit split on issue. Court decides not to weigh in b/c the Court rules in the petitioner's favor on Issue 2.

Issue 2: Petitioner did not knowingly and voluntarily waive his right to appeal. While statements by a court cannot supercede the terms of a plea agreement, the plea-taking court here misstated the terms of the waiver before the plea was accepted. When a defendant misunderstands the terms of a plea agreement based on statements by the court, the waiver is not knowing and voluntary. The court said that the petitioner retained the right to appeal, so his waiver of this right was not knowing and voluntary.

Because petitioner retained his right to appeal, he had a right to have his attorney file the notice of appeal.

District court should have conducted an evidentiary hearing on the issue of whether the petitioner instructed his attorney to appeal. If the petitioner instructed his attorney to file a notice of appeal and the attorney failed to do so, the attorney was per se ineffective and petitioner would be entitled to a delayed appeal.