Montemoino v. U.S., 94-4774

• Citation: 68 F.3d 416
• Decision Date: 20 October 1995
• Docket Number: No. 94-4774,94-4774
• Parties: Robert MONTEMOINO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Non-Argument Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 416

68 F.3d 416

Robert MONTEMOINO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 94-4774

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Oct. 20, 1995.

Robert Montemoino, Maxwell AFB, AL, pro se.

Kendall Coffey, Lewis Carey, U.S. Attorneys, Michael S. Davis, Kathleen M. Salyer Linda Collins Hertz, Asst. U.S. Attys., Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

Robert Montemoino was convicted, based upon his guilty plea, of conspiracy to possess with intent to distribute cocaine. He did not appeal his conviction or sentence. Thereafter, Montemoino filed a 28 U.S.C. Sec. 2255 petition raising a large number of grounds for relief. The district court denied that petition, and Montemoino appeals.

The district court's denial of the petition was proper, except in one respect. One of the grounds Montemoino raised in the petition was that his attorney had rendered ineffective assistance of counsel by failing to appeal his sentence. Montemoino alleged in the petition that he had requested his attorney to file a notice of appeal, but the attorney failed to do so. Nothing in the record of the guilty plea proceeding or the record of the Sec. 2255 proceeding contradicts Montemoino's allegation. The district court did not hold a hearing on the petition.

This Court has long held that an attorney's failure to file an appeal after the defendant requests him to do so entitles the defendant to an out-of-time appeal, even without a showing that there would have been any viable grounds for an appeal. See e.g., Gray v. United States, 834 F.2d 967, 967-68 (11th Cir.1987); see also Ferguson v. United States, 699 F.2d 1071, 1072-73 (11th Cir.1983) (and cases cited therein). However, this Court has also held that a different rule applies to guilty plea cases, because:

[t]he considerations ... underlying an acceptance of a guilty plea are quite different from the considerations underlying a defendant's decision to take a direct appeal from a judgment of conviction. A guilty plea, since it admits all the elements of a formal criminal charge, waives all non-jurisdictional defects in the proceedings against a defendant. Absent a jurisdictional defect, a defendant usually has no right to appeal from a plea of guilty.

Ferguson, 699 F.2d at 1073 (quoting Barrientos v. United States, 668 F.2d 838, 842-43 (5th Cir.1982) (citations omitted). Because the few grounds upon which the guilty plea may be challenged are not limited to direct appellate review, but instead are more appropriately raised in Sec. 2255 proceedings, an attorney's failure to file a direct appeal from a guilty plea "does not constitute ineffective assistance of counsel since it causes no harm to the defendant." Ferguson, 699 F.2d at 1073.

At first blush, the Ferguson rule would appear to foreclose Montemoino's claim that his attorney's failure to file an appeal constituted ineffective assistance of counsel. However, Ferguson is a pre-Sentencing Guidelines case. See U.S.S.G. ch. 1, pt. A (observing that the Sentencing Guidelines took effect November 1, 1987). Absent an express waiver of the right to appeal his sentence, a defendant who pleads guilty and is sentenced under the Guidelines has a right to direct appeal of his sentence. See United States v. Bushert, 997 F.2d 1343 (11th Cir.1993). Because of that opportunity, a defendant has no...