Summary
The United States District Court for the Eastern District of Tennessee denied Janmichael Vincent Lingo’s motion under 28 U.S.C. § 2255 alleging ineffective assistance of counsel for failing to file a notice of appeal. After an evidentiary hearing, the court found that Lingo had not established that he requested an appeal and credited counsel’s testimony regarding his customary practices. The court dismissed the § 2255 proceeding with prejudice and declined to issue a certificate of appealability.
Topics
Practice areas
Questions Presented
- Whether Lingo proved that counsel provided ineffective assistance by failing to file a notice of appeal after Lingo allegedly requested one.
- Whether Lingo was entitled to § 2255 relief or a delayed appeal based on the alleged failure to file a notice of appeal.
- Whether a certificate of appealability should issue.
Holdings
- Lingo failed to establish that he actually requested counsel to file a notice of appeal; therefore, he did not prove deficient performance or entitlement to § 2255 relief.
- The court declined to issue a certificate of appealability because Lingo failed to make a substantial showing of the denial of a constitutional right and reasonable jurists would not debate the court's resolution of his claim.
Key quotations
“The failure to perfect a direct appeal, in derogation of a defendant’s actual request, is a per se violation of the Sixth Amendment.” (Discussion)
“An attorney performs deficiently if, after consulting with his client, he disregards specific instructions from his client to file a notice of appeal—a purely ministerial task.” (Discussion)
Factual background
Lingo entered a Rule 11(c)(1)(C) guilty plea to conspiracy to distribute at least fifty grams of methamphetamine, with an agreed sentence later reduced to 166 months after counsel successfully challenged the presentence report. The amended plea agreement included waivers of direct appeal and collateral attack, subject to stated exceptions. After sentencing, no timely notice of appeal was filed. Lingo claimed that he twice asked counsel to appeal, while counsel testified that he did not recall such a request but would have filed an appeal if asked; the court found counsel credible and Lingo's testimony unsupported and not credible.
Procedural history
Lingo pleaded guilty under a Rule 11(c)(1)(C) agreement to conspiracy to distribute fifty grams or more of methamphetamine and received the agreed sentence of 166 months. He did not file a timely direct appeal. He later filed a timely § 2255 motion asserting that counsel failed to file an appeal as requested. Following an evidentiary hearing at which Lingo and former counsel testified, the district court denied relief and dismissed the action with prejudice.