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Jose Campusano v. United States, 442 F.3d 770, 2d Cir. (2006)
Jose Campusano v. United States, 442 F.3d 770, 2d Cir. (2006)
3d 770
The question presented in this case is whether an attorney who fails to file a
notice of appeal requested by his client is constitutionally ineffective when the
client waived appeal in his plea agreement. We hold that even after a waiver, a
lawyer who believes the requested appeal would be frivolous is bound to file
the notice of appeal and submit a brief pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). When counsel fails to do so,
we will presume prejudice, as required by Roe v. Flores-Ortega, 528 U.S. 470,
120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and the defendant will be entitled to a
direct appeal without any showing on collateral review that his appeal will
likely have merit.
BACKGROUND
2
(Scheindlin, J.) denying his motion pursuant to 28 U.S.C. 2255 to vacate, set
aside, or correct his sentence. On November 7, 2001, Campusano pled guilty to
one count of distributing and possessing with intent to distribute 27 grams of
cocaine base in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B).
3
Before the district court, the government opposed most of the substantive
challenges raised in Campusano's motion concerning his sentence. It conceded,
however, that if Campusano prevailed, after a hearing, on the factual question
of whether he timely asked his counsel to file a notice of appeal, he would be
entitled to have his judgment of conviction vacated and a new judgment
entered, so that he would have another opportunity to file a timely direct appeal.
The government has abandoned this concession on appeal.
The district court denied Campusano's motion in its entirety, holding, inter alia,
that "[u]nless a defendant asks his attorney to file an appeal that raises one of
the permitted grounds for appeal despite the plea waiver, the per se rule" that
failure to file a requested appeal constitutes prejudice "cannot apply." See
Campusano v. United States, No. 03 Civ. 2982(SAS), 2004 WL 1824112, at *6
(S.D.N.Y. Aug. 13, 2004). The district court granted a certificate of
appealability with respect to the applicability of the presumption of prejudice
when counsel fails to file a requested appeal after a waiver. Id. Campusano
timely appealed.
DISCUSSION
7
The Sixth Amendment to the United States Constitution provides that "[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence." "It has long been recognized that the
right to counsel is the right to the effective assistance of counsel." McMann v.
Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).
Under the familiar two-part test of Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance
of counsel must demonstrate that the representation (1) "fell below an objective
standard of reasonableness," id. at 688, 104 S.Ct. 2052, and (2) prejudiced the
defendant, id. at 694, 104 S.Ct. 2052.
In Flores-Ortega, the Supreme Court applied the Strickland test to claims that
counsel was constitutionally ineffective for failing to file a notice of appeal. 528
U.S. at 476-77, 120 S.Ct. 1029. The Flores-Ortega Court held that a lawyer
who disregards a defendant's specific instruction to file a notice of appeal acts
in a manner that is professionally unreasonable, id. at 477, 120 S.Ct. 1029, and
that where counsel's error leads to "the forfeiture of a proceeding itself,"
prejudice will be presumed, id. at 483-84, 120 S.Ct. 1029. "`When counsel fails
to file a requested appeal, a defendant is entitled to a new appeal without
showing that his appeal would likely have had merit.'" Id. (quoting Peguero v.
United States, 526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) (internal
brackets omitted)).3 The question in this case is whether the Flores-Ortega
presumption of prejudice applies to a defendant who has waived appeal in a
plea agreement.
10
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Id.
14
In United States v. Gomez-Perez, 215 F.3d 315 (2d Cir.2000), this Court held
that an Anders brief is required in situations where the defendant has executed a
waiver of appeal and then filed his own pro se notice of appeal. Id. at 319. A
post-waiver Anders brief must address: (1) whether the plea and waiver were
knowing, voluntary, and competent; (2) whether it would be against the
defendant's interest to contest his or her plea; and (3) any issues implicating
rights that cannot be, or arguably were not, waived.4 Id.
15
We noted that, although waivers of appeal are enforceable in all but a few
situations, important constitutional rights require some exceptions to the
presumptive enforceability of a waiver. Id. at 319 (noting that waivers are not
enforceable "when the waiver was not made knowingly, voluntarily, and
competently . . ., when the sentence was imposed based on constitutionally
impermissible factors . . ., when the government breached the plea agreement. .
., or when the sentencing court failed to enunciate any rationale for the
defendant's sentence" (internal citations, alterations, and quotation marks
omitted)). These constitutional protections are endangered if counsel fails to
pursue an appeal without advising a client of the reasons for doing so. "[W]hile
these exceptions [to the enforceability of a waiver] may be few in kind and
sporadic in frequency in comparison with the bulk of cases where waivers are
presumptively enforceable, they are the exceptions that must drive our rule
requiring an Anders brief." Id. at 320.
16
We further noted in Gomez-Perez that the filing of an Anders brief would make
it appropriate for this Court to consider whether the appeal would be frivolous
and to dismiss the appeal if we so found:
17
In the event that defendant's counsel files an adequate Anders brief, and the
defendant likewise fails to point to any non-frivolous issues pertaining to the
plea agreement and appeal waiver, a Motions Panel will then review the record
and determine whether it is appropriate to dismiss the appeal.
18
Id. at 320 (emphasis added). Thus, Gomez-Perez strongly suggests, and we now
hold, that where counsel does not file a requested notice of appeal and fails to
file an adequate Anders brief, courts may not dismiss the hypothetical appeal as
frivolous on collateral review. See United States v. Garrett, 402 F.3d 1262,
1267 (10th Cir.2005) (holding that the Flores-Ortega presumption of prejudice
applies even where the defendant waived appeal in a plea agreement
"regardless of whether, from the limited perspective of collateral review, it
appears that the appeal will not have any merit").
19
Because the present case involves the loss of a chance at an entire appellate
proceeding, it is similar to Garcia v. United States, 278 F.3d 134 (2d Cir.2002),
in which this Court held that a defendant who was incorrectly advised by
counsel that no appeal was possible must be granted an opportunity to appeal.
Id. at 137. In that case, the government argued also that there was no merit to
any of the defendant's substantive challenges to his sentence. We held that
"under the plain teaching of Flores-Ortega . . . [the defendant on habeas
review] is not required to establish the merits of any claim that he would have
raised on direct appeal." Id. at 138. The same reasoning applies here.
20
Our precedents take very seriously the need to make sure that defendants are
not unfairly deprived of the opportunity to appeal, even after a waiver appears
to bar appeal. In United States v. Tang, 214 F.3d 365 (2d Cir.2000), for
example, we suggested that whenever the defendant indicates a desire to appeal
despite a waiver, the district court should inform the defendant of the
timeframe for doing so regardless of whether the judge believes a nonfrivolous
ground for appeal exists.5 Id. at 370. The implication is that a waiver does not
signal an end to our concern for a defendant's right to participate fully in
decisions about whether to appeal.
21
Nor do we believe our holding will substantially burden the courts. When a
defendant claims that his attorney failed to file a requested notice of appeal, the
following proceedings will ensue: (1) a hearing before the district court
pursuant to 2255 to determine whether the client requested the appeal; (2) an
appeal from the district court's ruling, should either party seek one; and (3) a
direct appeal if the defendant did in fact request that a notice of appeal be filed.
The approach advocated by the government and the district court would entail
the following: (1) a proceeding before the district court pursuant to 2255 in
which the district court may dismiss the motion if the court finds that any
appeal would have been meritless; (2) an appeal from the district court's ruling,
should either party seek one, and (3) a direct appeal if the defendant prevails on
his ineffective-assistance challenge.
23
Our approach thus involves no additional step. We require the district court to
hold a hearing without assessing the merits of the requested appeal, where the
government's approach would ask the court to first examine the merits to
determine whether any appeal would be frivolous. At the district court level,
we doubt that the relatively simple fact-finding we require will be any more
complicated than examining the merits of an appeal that has not been filed, as
would be required under the government's approach. As noted in Chang v.
United States, 250 F.3d 79, 85-86 (2d Cir.2001), and Pham v. United States,
317 F.3d 178, 184 (2d Cir.2003), the district court has discretion to determine if
a testimonial hearing will be conducted. Chang, 250 F.3d at 85 (noting that the
Supreme Court has held that, "although a hearing may be warranted, that
conclusion does not imply that a movant must always be allowed to appear in a
district court for a full hearing"). At the appellate level, both scenarios require a
direct appeal if the defendant prevails on his ineffective-assistance challenge.
Of course, in both scenarios, this additional appellate proceeding will be
necessary only where the defendant's Sixth Amendment rights are actually
violated. It is true that, under our approach, defendants who establish
ineffective assistance may indeed go on to file frivolous appeals, but such
appeals will be promptly dismissed.
24
cases "is not a matter of formalistic compliance with a technical rule merely
postponing the inevitable denial of relief on the merits. Rather, it serves to
safeguard important interests with concrete and potentially dispositive
consequences which can be guaranteed only by the direct-appeal process and
the concomitant right to counsel." United States v. Garrett, 402 F.3d at 1265-66
(internal citation, alteration and quotation marks omitted). An Anders brief at
least makes available to the defendant the best possible arguments supporting
his appeal or the reasons why counsel believes no such arguments exist. See
Anders, 386 U.S. at 745, 87 S.Ct. 1396. Thus, if the defendant chooses to
proceed pro se, he or she will do so with as much advice and assistance as his
or her attorney can ethically provide. When an Anders brief is filed and a court
reviews the appeal to determine whether it raises non-frivolous issues, the
defendant is afforded first an opportunity to appeal with the benefit of counsel
and then an opportunity to demonstrate to the court the existence of
nonfrivolous issues after counsel has withdrawn. These are not trivial
opportunities. The Sixth Amendment does not allow them to be forfeited
through attorney error.
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For the foregoing reasons, we VACATE the order of the district court and
REMAND the case for further proceedings consistent with this opinion.
Notes:
*
The Honorable Edward R. Korman, Chief District Judge of the United States
District Court for the Eastern District of New York, sitting by designation
The relevant language reads as follows: "It is further agreed (i) that the
defendant will neither appeal, nor otherwise litigate under Title 28, United
States Code, Section 2255, any sentence within or below the stipulated
Guidelines range set forth above (108 to 135 months). . . . Furthermore, it is
agreed that any appeal as to the defendant's sentence that is not foreclosed by
this provision will be limited to that portion of the sentencing calculation that is
inconsistent with (or not addressed by) the above stipulation."
Aside from his claim that his lawyer failed to file the requested notice of
appeal, Campusano argued in his petition,inter alia, that his lawyer had failed
to inform him that the firearm enhancement to be applied under U.S.S.G.
2D1.1(b)(1) was arguably not applicable to his case, which "left him at the
mercy of [the] prosecution" during plea negotiations. For reasons to be
discussed, we do not reach the merits of this or Campusano's other claims in
this appeal.
Tang notes that where a waiver is "of the type we have ruled generally
enforceable," district court judges "should not give unqualified advice
concerning a right to appeal." 214 F.3d at 370 (emphasis added); see Fed.
R.Crim.P. 32(j)(1)(B) (requiring advice of "any right to appeal"). Of course,
where a waiver appears enforceable, a judge should not advise the defendant
that he or she has a right to appeal, because ordinarily this will be incorrect. But
even after a waiver, Tang suggests courts should make sure defendants are
informed of the possibility of appeal. Tang, 214 F.3d at 370.