Campusano v. U.S.

• Decision Date: 23 March 2006
• Docket Number: No. 04-5134-PR.,04-5134-PR.
• Citation: 442 F.3d 770
• Parties: Jose CAMPUSANO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

442 F.3d 770

Jose CAMPUSANO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 04-5134-PR.

United States Court of Appeals, Second Circuit.

Argued: August 2, 2005.

Decided: March 23, 2006.

Sally Wasserman, New York, New York, for Petitioner-Appellant.

William C. Komaroff, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, on the brief; Robin L. Baker, Assistant United States Attorney, of counsel), New York, New York, for Respondent-Appellee.

Before: POOLER and SOTOMAYOR, Circuit Judges, and KORMAN, Chief District Judge.^*

SOTOMAYOR, Circuit Judge:

The question presented in this case is whether an attorney who fails to file a notice of appeal requested by his client is constitutionally ineffective when the client waived appeal in his plea agreement. We hold that even after a waiver, a lawyer who believes the requested appeal would be frivolous is bound to file the notice of appeal and submit a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). When counsel fails to do so, we will presume prejudice, as required by Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and the defendant will be entitled to a direct appeal without any showing on collateral review that his appeal will likely have merit.

BACKGROUND

Petitioner-appellant Jose Campusano ("Campusano") appeals from an order of the United States District Court for the Southern District of New York (Scheindlin, J.) denying his motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. On November 7, 2001, Campusano pled guilty to one count of distributing and possessing with intent to distribute 27 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).

Campusano's plea agreement contained a promise not to appeal or otherwise challenge his sentence under 8 U.S.C. § 2255, provided the sentence fell within a stipulated range of 108 to 135 months.¹ On May 21, 2002, the district court imposed a sentence of 108 months. No direct appeal was filed.

On April 15, 2003, Campusano filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the basis of ineffective assistance of counsel. Campusano claimed, inter alia, that he twice timely requested that his counsel file a notice of appeal but that his counsel failed to do so. He referenced the general per se rule created by Flores-Ortega that failure to file a requested notice of appeal constitutes ineffective assistance and that no independent showing of prejudice need be made in such cases.

Before the district court, the government opposed most of the substantive challenges raised in Campusano's motion concerning his sentence. It conceded, however, that if Campusano prevailed, after a hearing, on the factual question of whether he timely asked his counsel to file a notice of appeal, he would be entitled to have his judgment of conviction vacated and a new judgment entered, so that he would have another opportunity to file a timely direct appeal. The government has abandoned this concession on appeal.

The district court denied Campusano's motion in its entirety, holding, inter alia, that "[u]nless a defendant asks his attorney to file an appeal that raises one of the permitted grounds for appeal despite the plea waiver, the per se rule" that failure to file a requested appeal constitutes prejudice "cannot apply." See Campusano v. United States, No. 03 Civ. 2982(SAS), 2004 WL 1824112, at *6 (S.D.N.Y. Aug. 13, 2004). The district court granted a certificate of appealability with respect to the applicability of the presumption of prejudice when counsel fails to file a requested appeal after a waiver. Id. Campusano timely appealed.

DISCUSSION

This case requires us to decide whether a habeas petitioner whose lawyer allegedly ignored his requests for an appeal must demonstrate on collateral review that his claims would have had merit before he is allowed to pursue them on direct appeal.² When reviewing a petition for habeas corpus, we review factual findings for clear error and questions of law de novo. Triana v. United States, 205 F.3d 36, 40 (2d Cir.2000). "The question of whether a defendant's lawyer's representation violates the Sixth Amendment right to effective assistance of counsel is a mixed question of law and fact that is reviewed de novo." LoCascio v. United States, 395 F.3d 51, 54 (2d Cir.2005) (internal quotation marks omitted).

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." "It has long been recognized that the right to counsel is 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). Under the familiar two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance of counsel must demonstrate that the representation (1) "fell below an objective standard of reasonableness," id. at 688, 104 S.Ct. 2052, and (2) prejudiced the defendant, id. at 694, 104 S.Ct. 2052.

In Flores-Ortega, the Supreme Court applied the Strickland test to claims that counsel was constitutionally ineffective for failing to file a notice of appeal. 528 U.S. at 476-77, 120 S.Ct. 1029. The Flores-Ortega Court held that a lawyer who disregards a defendant's specific instruction to file a notice of appeal acts in a manner that is professionally unreasonable, id. at 477, 120 S.Ct. 1029, and that where counsel's error leads to "the forfeiture of a proceeding itself," prejudice will be presumed, id. at 483-84, 120 S.Ct. 1029. "`When counsel fails to file a requested appeal, a defendant is entitled to a new appeal without showing that his appeal would likely have had merit.'" Id. (quoting Peguero v. United States, 526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) (internal brackets omitted)).³ The question in this case is whether the Flores-Ortega presumption of prejudice applies to a defendant who has waived appeal in a plea agreement.

The government argues that all of Campusano's substantive claims were precluded by his waiver of appeal, and that, as a result, the Flores-Ortega presumption of prejudice should not apply. In effect, the government would have us (1) reach the merits of the claims Campusano would have made on appeal, (2) hold that they were precluded by the waiver, and (3) conclude that Campusano was not prejudiced by any failure to file the appeal because his only grounds for appeal were frivolous. As the district court put it, "[c]ounsel should not be deemed ineffective for failing to bring a meritless appeal." Campusano, 2004 WL 1824112, at *5.

To understand the issues raised by this case, it is necessary to understand the scope of defense counsel's obligations where an appeal would apparently be frivolous. Generally, attorneys who believe their client's appeal would be frivolous are required to file a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Anders requires that counsel submit a brief to the court and to the defendant, requesting withdrawal but "referring to anything in the record that might arguably support the appeal." Id. at 744, 87 S.Ct. 1396.

[T]he court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Id.

In United States v. Gomez-Perez, 215 F.3d 315 (2d Cir.2000), this Court held that an Anders brief is required in situations where the defendant has executed a waiver of appeal and then filed his own pro se notice of appeal. Id. at 319. A post-waiver Anders brief must address: (1) whether the plea and waiver were knowing, voluntary, and competent; (2) whether it would be against the defendant's interest to contest his or her plea; and (3) any issues implicating rights that cannot be, or arguably were not, waived.⁴ Id.

We noted that, although waivers of appeal are enforceable in all but a few situations, important constitutional rights require some exceptions to the presumptive enforceability of a waiver. Id. at 319 (noting that waivers are not enforceable "when the waiver was not made knowingly, voluntarily, and competently . . ., when the sentence was imposed based on constitutionally impermissible factors . . ., when the government breached the plea agreement. . ., or when the sentencing court failed to enunciate any rationale for the defendant's sentence" (internal citations, alterations, and quotation marks omitted)). These constitutional protections are endangered if counsel fails to pursue an appeal without advising a client of the reasons for doing so. "[W]hile these exceptions [to the enforceability of a waiver] may be few in kind and sporadic in frequency in comparison with the bulk of cases where waivers are presumptively enforceable, they are the exceptions that must drive our rule requiring an Anders brief." Id. at 320.

We further noted in Gomez-Perez that the filing of an Anders brief would make it appropriate for this Court to consider whether the appeal would be frivolous and to dismiss the appeal if we so found:

In the event that defendant's counsel files an adequate Anders brief, and the defendant likewise fails to point to any non-frivolous issues pertaining to the plea agreement and appeal waiver, a Motions Panel will then...