Campbell v. United States

• Decision Date: 19 July 2012
• Docket Number: No. 11–3233.,11–3233.
• Citation: 686 F.3d 353
• Parties: Robert Dan CAMPBELL, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

686 F.3d 353

Robert Dan CAMPBELL, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 11–3233.

United States Court of Appeals,Sixth Circuit.

July 19, 2012.

ON BRIEF:Thomas A. Karol, United States Attorney's Office, Toledo, Ohio, for Appellee. Robert Dan Campbell, Wapakoneta, Ohio, pro se.

Before: SILER and MOORE, Circuit Judges; VAN TATENHOVE, District Judge.^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Petitioner–Appellant Robert Dan Campbell pleaded guilty to a one-count information charging him with conspiracy to commit wire and mail fraud in violation of 18 U.S.C. §§ 1341, 1343, by engaging in a mortgage-fraud scheme that violated 18 U.S.C. § 371. As part of the plea agreement, Campbell partially waived the right to appeal his conviction and sentence. In a motion to vacate under 28 U.S.C. § 2255, Campbell nevertheless contended, among other things, that his attorney's failure to file an appeal despite Campbell's alleged express instruction to do so amounted to ineffective assistance of counsel. Without conducting an evidentiary hearing to answer the factual question presented by Campbell's allegations—namely, whether Campbell did, in fact, unequivocally instruct his attorney to file an appeal on his behalf—the district court denied Campbell's § 2255 motion. We granted a certificate of appealability on the sole issue of whether an attorney's failure to file a notice of appeal under these specific circumstances constitutes ineffective assistance of counsel. We hold that it does. Accordingly, we VACATE the district court's judgment and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

On April 23, 2008, the U.S. Attorney for the Northern District of Ohio issued a felony information alleging that Campbell, a Lima, Ohio real-estate investor, participated in a mortgage-fraud conspiracy by, among other things, falsifying mortgage documents, covertly paying borrowers' closing costs, and “flip[ping]” properties bought by a straw purchaser and resold to Campbell at an inflated price. R. 1 (Information ¶¶ 3–4, at 2). At his arraignment, Campbell agreed to waive indictment and plead guilty to the charges as set forth in the information. Pursuant to the plea agreement, Campbell also agreed, with only a few exceptions, to waive the right to challenge his conviction or sentence on either direct appeal or collateral review.¹The magistrate judge conducting the plea hearing confirmed Campbell's understanding of the waiver, R. 10 (Plea Hr'g Tr. at 22), and concluded that Campbell voluntarily and knowingly entered the plea, id. at 42.

The district court held Campbell's sentencing hearing on September 20, 2010. ² Based on a total offense level of 13 and a criminal history category of I, the district court determined the applicable Guideline range to be 12 to 18 months in prison. R. 46 (Sentencing Hr'g Tr. at 16). The district court then imposed a below-Guidelines sentence of eight months in prison and a $35,000 fine. Id. at 21. At the end of the hearing, the district court reaffirmed Campbell's understanding of the appeal waiver, but informed Campbell that to the extent that he did have grounds to appeal, he needed to do so within ten days of the entry of final judgment. Id. at 25. No notice of appeal was filed.

On December 13, 2010, Campbell filed a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255. The motion raised four issues: (1) whether Campbell was denied effective assistance of counsel when his attorney failed to file a requested notice of appeal; (2) whether counsel was ineffective in permitting Campbell to plead guilty when, according to Campbell, he is actually innocent; (3) whether the sentence imposed was “illegal” and procedurally unreasonable; and (4) whether the prosecutor violated Campbell's rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or otherwise engaged in prosecutorial misconduct. Campbell's motion also noted the usefulness of an evidentiary hearing to resolving the merits of his claims. Without conducting any hearing, the district court rejected all four of Campbell's claims. With respect to the first issue, the district court held that because the plea agreement contained an appeal-waiver provision with limited, inapplicable exceptions, Campbell's attorney's failure to file an appeal “did not deprive [Campbell] of [his] Sixth Amendment rights.” R. 3 (Dist. Ct. Op. at 3). The district court reasoned that, because of the broad waiver provision, any appeal would have been dismissed; thus, the district court held that Campbell could not demonstrate ineffective assistance under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Finding no basis for a good-faith appeal with respect to this or any of Campbell's other claims, the district court declined to issue a certificate of appealability under 28 U.S.C. § 2253(c). On review, we agreed with the district court's assessment of claims two through four, but, citing a circuit split and the absence of precedential Sixth Circuit authority on the issue of the attorney's failure to file a requested notice of appeal, see Sarlog v. United States, 422 Fed.Appx. 399, 403 (6th Cir.2011), we granted the certificate of appealability solely with respect to the question now before us. Campbell v. United States, No. 11–3233, order at 3 (6th Cir. Sept. 22, 2011).

II. ANALYSIS

We review de novo the district court's denial of a motion to vacate under 28 U.S.C. § 2255, but review the district court's factual findings only for clear error. United States v. Doyle, 631 F.3d 815, 817 (6th Cir.2011). “Ineffective assistance of counsel claims are mixed questions of law and fact,” which we also review de novo. Id. Although we review a district court's refusal to conduct an evidentiary hearing with respect to a defendant's § 2255 motion only for abuse of discretion, such a hearing “is required unless the record conclusively shows that the petitioner is entitled to no relief.” Arredondo v. United States, 178 F.3d 778, 782 (6th Cir.1999) (internal quotation marks omitted).

Our analytical starting point is Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in which the Supreme Court held that criminal defendants have a Sixth Amendment right to a “reasonably effective” attorney and established the now-familiar test for ineffective assistance of counsel. Specifically, to prevail on an ineffective-assistance claim, defendants must show (1) “that counsel's representation fell below an objective standard of reasonableness,” id. at 688, 104 S.Ct. 2052, and (2) “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,” id. at 694, 104 S.Ct. 2052. In a guilty plea context “the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

In Roe v. Flores–Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the Supreme Court applied the Strickland test to a case involving an attorney's failure to file a notice of appeal. Although Flores–Ortega addressed an attorney's obligations with respect to counseling a defendant who had not waived any appeal rights and who had not clearly expressed a desire to appeal, the Court's reasoning began with the long-established rule “that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Id. at 477, 120 S.Ct. 1029. Moving to Strickland's prejudice prong, the Court further held that “when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal.” Id. at 484, 120 S.Ct. 1029. In reaching its conclusion, the Court rejected the proposition that a defendant must always establish prejudice by showing possible success on the merits, noting that “it is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal.” Id. at 486, 120 S.Ct. 1029. Instead, deficient performance in this context causes prejudice because it causes the “denial of the entire judicial proceeding itself, which a defendant wanted at the time and to which he had a right.” Id. at 483, 120 S.Ct. 1029. Thus, the defendant need only “demonstrate that, but for counsel's deficient conduct, he would have appealed,” id. at 486, 120 S.Ct. 1029.

In light of the specific propositions of law outlining the obligations of a criminal defense attorney at the appeal stage, and assuming, as Campbell claims in his brief, that he did direct his attorney to file a notice of appeal,³ we conclude that Flores–Ortega largely governs this case. Our own precedent conforms with this result. Two years before Flores–Ortega, we made clear “that the failure to perfect a direct appeal, in derogation of a defendant's actual request, is a per se violation of the Sixth Amendment.” Ludwig v. United States, 162 F.3d 456, 459 (6th Cir.1998). Consistent with Flores–Ortega, we also indicated that such a violation occurs “without regard to the probability of success on appeal”; because such a failure on the attorney's part deprives the defendant of any counsel whatsoever, for purposes of the Strickland analysis, “[p]rejudice must be presumed.” Ludwig, 162 F.3d at 459.

The government maintains that the existence of an appeal waiver differentiates the attorney conduct in this case from that presented in Flores–Ortega....