United States District Court, W.D. North Carolina, Asheville Division
Reidinger United States District Judge
MATTER is before the Court on Petitioner's
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody. [Doc. 1].
moves to vacate his conviction and sentence under 28 U.S.C.
§ 2255, arguing that: (1) counsel failed to file a
notice of appeal of this Court's judgment notwithstanding
Petitioner's request that he do so; and (2) counsel
failed to adequately investigate discrepancies between the
facts alleged in the Indictment and those contained in the
factual proffer. The Government has filed a Response
conceding that this Court should grant relief in part, enter
new judgment permitting Petitioner to file a timely notice of
appeal, and dismiss his remaining claim without prejudice.
18, 2016, Petitioner and 15 co-defendants were indicted in a
crack cocaine distribution conspiracy. Petitioner was charged
with one count of conspiracy to possess with intent to
distribute cocaine base, five counts of possession with
intent to distribute cocaine base, and two counts of
distribution of cocaine base. [Criminal No. 1:16-cr-00064
(“CR”), Doc. 3: Bill of Indictment]. On April 14,
2017, Petitioner pled guilty to the conspiracy charge
pursuant to a written plea agreement. [CR Doc. 379: Plea
Agreement]. On August 17, 2017, this Court conducted
Petitioner's sentencing hearing, during which Petitioner
was sentenced to 120 months' imprisonment. [CR Doc. 432:
Judgment]. This Court entered Judgment on August 18, 2017,
and Petitioner did not appeal.
December 4, 2017, Petitioner filed the pending § 2255
Motion to Vacate. [Doc. 1].
STANDARD OF REVIEW
to Rule 4(b) of the Rules Governing Section 2255 Proceedings,
sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the
record of prior proceedings” in order to determine
whether a petitioner is entitled to any relief. After having
considered the record in this matter and the Government's
Response, the Court finds that this matter can be resolved
without an evidentiary hearing. See Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970).
defendant unequivocally instructs an attorney to file a
timely notice of appeal, the attorney's failure to file
the appeal is per se ineffective assistance of
counsel. Roe v. Flores-Ortega, 528 U.S. 470, 477
(2000). Prejudice to the defendant is presumed regardless of
the merits of the appeal or waiver of appellate rights.
See Evitts v. Lucey, 469 U.S. 387, 391-405 (1985);
United States v. Poindexter, 492 F.3d 263, 269 (4th
Cir. 2007); United States v. Peak, 992 F.2d 39, 42
(4th Cir. 1993). Therefore, where a court is presented with
conflicting verified statements on the issue of whether a
defendant unequivocally requested that his counsel file a
notice of appeal, the Fourth Circuit has directed that the
court conduct an evidentiary hearing to resolve that question
of fact. See Poindexter, 492 F.3d at 273. If, after
conducting the evidentiary hearing, the Court determines that
the petitioner did not unequivocally request that counsel
file a notice of appeal, the petitioner's motion should
be denied. See id.
alleges that counsel did not consult with him about appealing
and that, on August 21, 2017, he wrote counsel a letter
instructing him to appeal but that counsel failed to do so.
Response to Petitioner's § 2255 Motion to Vacate,
the Government asserts that, even if it were to file an
answer or other response supported by an affidavit of counsel
denying Petitioner's allegations, the Court would be
compelled to give Petitioner the benefit of the doubt on the
matter. Respondent concedes that the appropriate remedy is
for the Court to vacate the original Judgment and enter an
Amended Judgment from which an appeal may be taken.
Court agrees with Respondent that the Court's resources
would best be served by granting the § 2255 Motion to
Vacate to the extent that Petitioner brings a claim for
ineffective assistance of counsel based on counsel's
failure to file a notice of appeal on Petitioner's behalf
after Petitioner instructed him to do so. The Court will,
therefore, vacate the original Judgment and enter an Amended
Judgment from which an appeal may be taken. Petitioner's
remaining § 2255 claim will be dismissed without
is hereby advised that he has the right to appeal his
criminal case to the United States Fourth Circuit Court of
Appeals. Should Petitioner choose to appeal, he must file a
Notice of Appeal with the Clerk of Court for the United
States District Court for the Western District of North
Carolina within 14 (fourteen) calendar days after the date
the Amended Judgment of conviction is filed or within ...