492 F.3d 263 (4th Cir. 2007), 05-7635, United States v. Poindexter

Docket Nº:05-7635, 05-7636.
Citation:492 F.3d 263
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Walter Oriley POINDEXTER, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Walter Oriley Poindexter, Defendant-Appellant.
Case Date:June 28, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 263

492 F.3d 263 (4th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Walter Oriley POINDEXTER, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Walter Oriley Poindexter, Defendant-Appellant.

Nos. 05-7635, 05-7636.

United States Court of Appeals, Fourth Circuit.

June 28, 2007

          Argued: May 22, 2007.

         Appeals from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge., CR-03-213-WDQ; CA-05-829-WDQ.

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         COUNSEL

         ARGUED:

         Megan Elizabeth Quinlan, Covington & Burling, Washington, DC, for Appellant.

         Harry Mason Gruber, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

         ON BRIEF:

         Caroline M. Brown, Covington & Burling, Washington, DC, for Appellant.

         Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

         Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

         Vacated and remanded by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge MOTZ and Judge SHEDD joined.

         OPINION

         HAMILTON, Senior Circuit Judge:

         Walter Poindexter filed a motion pursuant to 28 U.S.C. § 2255, contending, among other things, that his attorney rendered constitutionally ineffective assistance when he failed to file a timely notice of appeal after being unequivocally instructed to do so. In denying Poindexter's motion without an evidentiary hearing, the district court declined to resolve the factual dispute concerning whether Poindexter unequivocally instructed his attorney to file a timely notice of appeal. Instead, the court concluded that Poindexter's ineffective assistance of counsel claim lacked merit because: (1) in his plea agreement, Poindexter waived his right to appeal his conviction and sentence; and (2) Poindexter was sentenced in accordance with the terms of the plea agreement. Poindexter appeals. For the reasons stated below, we hold that an attorney renders constitutionally ineffective assistance of counsel if he fails to follow his client's unequivocal instruction to file a timely notice of appeal even though the defendant may have waived his right to challenge his conviction and sentence in the plea agreement. Accordingly, we vacate the district court's judgment and remand for further proceedings consistent with this opinion.

         I

         On October 23, 2003, Poindexter was charged by a federal grand jury sitting in the District of Maryland with conspiracy to distribute in excess of one kilogram of heroin, 21 U.S.C. §§ 841(a)(1) and 846, and three counts of distributing heroin, id. § 841(a)(1). The conspiracy count alleged that Poindexter and another individual used various locations in the City of Baltimore to cut, package, stash, and sell heroin.

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The conspiracy count also alleged as an overt act in furtherance of the conspiracy that, on January 22, 2001, Poindexter shot and killed another man that Poindexter believed was responsible for burglarizing one of the stash houses. The three distribution counts alleged that, on three separate occasions in September 2002, Poindexter sold a quantity of heroin to an FBI cooperating witness. On December, 1, 2003, the case went to trial. After three days of trial, Poindexter decided to plead guilty to the three distribution counts.

         In the plea agreement, the parties stipulated to a drug amount substantially lower than the one kilogram quantity charged in the conspiracy count. For its part, the government agreed not to seek an enhancement to Poindexter's sentence based on Poindexter's alleged role in the January 22, 2001 shooting incident.1 For his part, Poindexter agreed not to appeal his sentence, including "any issues that relate[d] to the establishment of the guideline range," (J.A. 39), provided: (1) the district court did not upwardly depart from the sentencing range provided for by the Sentencing Guidelines; or (2) the sentence imposed did not exceed the statutory maximum allowed under the law, which was twenty years' imprisonment on each count.2

         On December 4, 2003, the district court held a Rule 11 hearing. See Fed. R. Crim. P. 11. During the hearing, Poindexter acknowledged that he had discussed the appeal waiver with his attorney, understood the nature of the waiver, and agreed to be bound by the waiver.

         A presentence report (PSR) was prepared in preparation for sentencing. The PSR recommended a sentencing range of 168 to 210 months' imprisonment, based on the conclusion that Poindexter's total offense level was 30 and his criminal history category was VI. In accordance with the PSR's recommendations, the district court sentenced Poindexter to concurrent terms of 168 months' imprisonment on each count. Poindexter did not file a notice of appeal.

         On March 28, 2005, Poindexter filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. In his motion, Poindexter claimed, among other things, that he was denied the effective assistance of counsel when his attorney failed to file a timely notice of appeal after he unequivocally instructed his attorney to do so.3

         On August 8, 2005, the district court denied Poindexter's motion without an evidentiary hearing, holding, inter alia, that Poindexter could not prevail on his claim that his attorney rendered constitutionally

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ineffective assistance of counsel when he failed to file a timely notice of appeal because Poindexter was sentenced within the sentencing range established by the Sentencing Guidelines and, therefore, any challenge to his sentence would fall under the appeal waiver contained in the plea agreement. In so ruling, the district court incorrectly observed that Poindexter's appeal waiver covered an appeal of his conviction, as opposed to just an appeal of his sentence. Also of note, the district court declined to resolve the factual dispute concerning whether Poindexter unequivocally instructed his attorney to file a timely notice of appeal. 4 Following the district court's denial of a certificate of appealability, Poindexter filed an application for a certificate of appealability in this court. On July 12, 2006, we granted Poindexter a certificate of appealability on his claim that his attorney rendered constitutionally ineffective assistance of counsel when he failed to file a timely notice of appeal after being unequivocally instructed to do so.

         II

         When reviewing an appeal from the denial of a § 2255 motion, we review de novo the district court's legal conclusions. United States v. Nicholson, 475 F.3d 241, 248 (4th Cir.2007). When the district court denies § 2255 relief without an evidentiary hearing, the nature of the court's ruling is akin to a ruling on a motion for summary judgment. Id. In such a circumstance, we review the facts in the light most favorable to the § 2255 movant. Id. Because the district court did not hold an evidentiary hearing to resolve the question of whether Poindexter unequivocally instructed his attorney to file a timely notice of appeal, we must assume that Poindexter did so instruct for purposes of resolving his appeal.

         Poindexter contends that an attorney who disregards his client's unequivocal instruction to file a timely notice of appeal acts in a manner that is both professionally unreasonable and presumptively prejudicial, notwithstanding the fact that the client may have executed an appeal waiver. In response, the government submits that Poindexter's appeal waiver allowed the district court to dismiss his § 2255 motion if the district court found his claims frivolous, either because they were covered by the appeal waiver or because they failed on the merits.

         The Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The Supreme Court has long recognized that the right to counsel includes "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). An ineffective assistance of counsel claim requires a showing that (1) "counsel's performance was deficient" and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

         The Constitution of course does not give a criminal defendant the right to appeal as a matter of right. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). However, the United States Code provides this right in 18 U.S.C. § 3742, and we have recognized that a defendant can waive this statutory

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