Summary
The Eighth Circuit held that a verified claim that counsel failed to file a requested notice of appeal, contradicted only by counsel’s affidavit, warranted an evidentiary hearing under 28 U.S.C. § 2255. The court vacated the district court’s denial of relief and remanded for a hearing, applying its rule that prejudice is presumed when counsel fails to file a requested appeal, even when the defendant waived appellate rights.
Topics
Practice areas
Questions Presented
- Whether a § 2255 petitioner alleging that counsel failed to file a requested notice of appeal is entitled to an evidentiary hearing when the petitioner's sworn account conflicts with counsel's affidavit.
- Whether the presumption of prejudice for counsel's failure to file a requested appeal applies even when the defendant waived her appellate rights in a plea agreement.
Holdings
- A verified § 2255 allegation that the petitioner instructed counsel to file an appeal and counsel failed to do so generally warrants an evidentiary hearing when counsel's contrary affidavit creates a factual dispute and neither account is facially incredible.
- Under controlling Eighth Circuit precedent, if a petitioner proves that she asked counsel to file an appeal and counsel refused, ineffective assistance is established and prejudice is presumed even if the petitioner waived her right to appeal.
Key quotations
“No showing of prejudice is required in this unique circumstance.” (923)
“When a district court receives conflicting statements—one from a § 2255 petitioner and one from her former counsel—the court cannot “mak[e] a factual determination based on the relative credibility of [these individuals] without the benefit of an evidentiary hearing.”” (924)
“Because Witthar’s allegations, if true, amounted to ineffective assistance of counsel, there existed a factual dispute on a critical issue.” (925)
Factual background
Witthar pleaded guilty to three federal offenses under a plea agreement that waived most appellate and collateral-attack rights but preserved specified claims, including ineffective assistance of counsel. The district court sentenced her to 63 months' imprisonment, at the bottom of her advisory Guidelines range, and no direct appeal was filed. In her verified § 2255 petition, Witthar stated that she asked counsel to file an appeal after sentencing and that counsel refused, while counsel submitted an affidavit denying that she had made the request.
Procedural history
Witthar pleaded guilty in the United States District Court for the Western District of Missouri to conspiracy against rights, obstruction of justice, and interference with fair housing rights. After receiving a 63-month sentence, she filed a pro se § 2255 motion alleging that she had instructed counsel to appeal. The district court denied the failure-to-appeal claim on the merits without an evidentiary hearing, relying on the allegedly conclusory nature of her allegations and counsel's contrary affidavit. The Eighth Circuit vacated the order and remanded for an evidentiary hearing.
Remand instructions
The district court must conduct an evidentiary hearing on whether Witthar instructed counsel to file an appeal and counsel failed to do so.