Castellanos v. U.S.

• Decision Date: 10 June 1994
• Docket Number: Nos. 93-1287,93-1626,s. 93-1287
• Citation: 26 F.3d 717
• Parties: John CASTELLANOS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Kevin B. STREETE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 717

26 F.3d 717

John CASTELLANOS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Kevin B. STREETE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Nos. 93-1287, 93-1626.

United States Court of Appeals, Seventh Circuit.

Submitted April 28, 1994.

Decided June 10, 1994.

John Castellanos (submitted), pro se.

Rodger A. Heaton, Asst. U.S. Atty., Springfield, IL, for the U.S. in No. 93-1287.

Kevin B. Streete, pro se.

John J. Thar, Asst. U.S. Atty., Cale J. Bradford, Indianapolis, IN, for the U.S. in No. 93-1626.

Before CUDAHY, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

These appeals present a common question: whether a prisoner who contends that his attorney rendered ineffective assistance by failing to perfect an appeal from his conviction must show that he would have prevailed had an appeal been taken. We answer "no." If the defendant told his lawyer to appeal, and the lawyer dropped the ball, then the defendant has been deprived, not of effective assistance of counsel, but of any assistance of counsel on appeal. Abandonment is a per se violation of the sixth amendment. United States v. Cronic, 466 U.S. 648, 658-59, 104 S.Ct. 2039, 2046-47, 80 L.Ed.2d 657 (1984).

Castellanos pleaded guilty. He tells us that the quantities of cocaine the prosecutor attributed to him are excessive, and that he developed a line of testimony and argument to be presented at the sentencing proceeding--but that the lawyer unaccountably failed to present it. Then, he says, he told his lawyer to appeal, but the lawyer refused, informing Castellanos that one may not appeal from a sentence based on a plea of guilty. Streete also pleaded guilty and believes that his sentence is excessive. He, too, says that he asked his lawyer to appeal. Streete's lawyer did not refuse, but neither did he file a notice of appeal.

Both Castellanos and Streete filed petitions under 28 U.S.C. Sec. 2255, contending that they had received ineffective assistance of counsel. Both district judges denied the petitions, reasoning that all claims had been forfeited by failure to take an appeal. Counsel's constitutionally ineffective performance may establish "cause" for such an omission. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). But subpar performance by a lawyer is constitutionally ineffective only if it causes prejudice, Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and in each case the judge concluded that "prejudice" means jeopardizing a substantial prospect of success on appeal. The judges believed that Castellanos and Streete had little chance of victory and therefore had not suffered prejudice by the absence of an appeal. That conclusion led each judge to deny the petition.

One obvious difficulty with this application of the "prejudice" component is that the defendant never receives the benefit of a lawyer's services in constructing potential appellate arguments. Neither Castellanos nor Streete has had legal representation when seeking relief under Sec. 2255. No one has looked at the record with an advocate's eye. Although the district judges conscientiously tried to imagine what a lawyer might have done, an advocate often finds things that an umpire misses--especially when the umpire is asking whether the court of appeals was likely to reverse his own decision. Few district judges believe that their decisions are likely to be overturned; if they believed that, they would have done things differently in the first place. We know from cases such as Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988); and United States v. Edwards, 777 F.2d 364 (7th Cir.1985), that if the lawyers representing Castellanos and Streete had filed notices of appeal but then had not filed briefs, or had filed one-paragraph statements that in their views the appeals lacked merit, their performance would have been constitutionally deficient. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), holds that the "prejudice" component of Strickland does not apply when an appellate lawyer fails either to file a brief or to satisfy the requirements of Anders in seeking leave to withdraw. See also Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Rodriques v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969).

Although the Constitution does not ensure that every defendant receives the benefit of superior advocacy--how could it, given that half of all lawyers are below average?--it does entitle every defendant to the benefits of an advocate. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), departed from Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), only by concluding that when the defendant never had access to legal assistance, the Court would not attempt to assess prejudice. So if the lawyer fails to show up for trial, that fact alone establishes a constitutional flaw--even if a judge believes that a lawyer, having the defendant's interests at heart, would not have cross-examined the prosecution's witnesses and would have rested without presenting evidence. Just so, we believe, if the lawyer fails to show up for appeal--which can occur either if the lawyer fails to initiate an appeal or if the lawyer fails to prosecute the appeal.

Every court that has squarely confronted this question since Penson has held that failure to take an appeal, despite the defendant's request, is ineffective assistance without regard to the probability of success on appeal. See Bonneau v. United States, 961 F.2d 17 (1st Cir.1992); Williams v. Lockhart, 849 F.2d 1134, 1137 n. 3 (8th Cir.1988); United States v. Horodner, 993 F.2d 191, 195 (9th Cir.1993); United States v. Davis, 929 F.2d 554, 557 (10th Cir.1991). "Request" is an important ingredient in this formula. A lawyer need not appeal unless the client wants to pursue that avenue. Moreover, as we held in United States v. Mosley, 967 F.2d 242 (7th Cir.1992), the Constitution does not require a lawyer to advise the client of the right to appeal. That duty rests...