United States v. Sellner

• Decision Date: 15 December 2014
• Docket Number: No. 13–3794.,13–3794.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Stacey SELLNER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

773 F.3d 927

UNITED STATES of America, Plaintiff–Appellee
v.
Stacey SELLNER, Defendant–Appellant.

No. 13–3794.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 9, 2014.
Filed: Dec. 15, 2014.

773 F.3d 929

Kimberly C. Bunjer, U.S. Attorney's Office, Omaha, NE, for Plaintiff–Appellee.

Michael David Gooch, Omaha, NE, for Defendant–Appellant.

Stacey Sellner, Waseca, MN, pro se.

Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.

Opinion

WOLLMAN, Circuit Judge.

Federal prisoner Stacey Sellner filed a pro se motion to vacate her conviction pursuant to 28 U.S.C. § 2255, alleging that her attorney had failed to file a notice of appeal as requested. Before the district court ruled on that motion, Sellner filed another § 2255 motion raising a different claim. The district court dismissed Sellner's first § 2255 motion on the merits without an evidentiary hearing and dismissed her second motion as “second or successive.” We reverse and remand.

I.

Sellner pleaded guilty to conspiracy to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846. Judgment was entered on March 8, 2013. Her attorney did not file a notice of appeal.

In July 2013, Sellner filed a pro se motion to vacate her sentence pursuant to 28 U.S.C. § 2255, alleging four grounds of ineffective assistance of counsel, including counsel's failure to file a notice of appeal as requested. In a written statement, Sellner alleged that following sentencing she told her attorney that she “wanted him to appeal,” but that her attorney responded that there was nothing he could do. Sellner's attorney submitted an affidavit in response, stating that when Sellner asked him about filing an appeal, he told her that he would file an appeal if she insisted, but that Sellner decided to forgo an appeal after counsel explained to Sellner that she had waived her right to appeal.

In November 2013, Sellner filed another pro se § 2255 motion, alleging a violation under Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Thereafter, the district court dismissed the July § 2255 motion on the merits without an evidentiary hearing and the November § 2255 motion as barred by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) as “second or successive.” The district court granted a certificate of appealability on both motions.

On appeal, Sellner argues that the district court should have held an evidentiary hearing before ruling on her July 2013 claim of ineffective assistance of counsel for failing to file a notice of appeal and that her November § 2255 motion should have been construed as a motion to amend her July § 2255 motion. At oral argument, the government conceded that the case should be remanded for an evidentiary hearing on the claim of failure to file a notice of appeal and suggested that we remand the entire case for the sake of judicial economy.

II.

We review the denial of an evidentiary hearing for abuse of discretion. Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir.2013). “Evidentiary hearings on 28 U.S.C. § 2255 motions are preferred, and the general rule is that a hearing is necessary prior to the motion's disposition if a factual dispute exists.” Id. “The district court is not permitted to make a credibility determination on the affidavits alone.” Id. at 1206. It may, however, deny an evidentiary hearing if “(1) the [petitioner's] allegations, accepted as true, would not entitle the [petitioner]

773 F.3d 930

to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Id. at 1206–07 (alterations in original) (quoting Buster v. United States, 447 F.3d 1130, 1132 (8th Cir.2006) ).

An attorney's failure to file a notice of appeal upon the client's request constitutes ineffective assistance of counsel, and no specific showing of prejudice is required. Watson v. United States, 493 F.3d 960, 963–64 (8th Cir.2007) (citing Roe v. Flores–Ortega, 528 U.S. 470, 477, 483–84, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) ). Even if the client waived his right to appeal as part of a plea agreement, prejudice is presumed if the client asked his attorney to file a notice of appeal and the attorney did not do so. Id. at 964. As recounted above, Sellner alleges that she informed her attorney that she “wanted ... to appeal.” Sellner's attorney's conflicting affidavit states that Sellner decided not to appeal.

We recently addressed a similar situation in Franco v. United States, 762 F.3d 761 (8th Cir.2014). In Franco, the petitioner submitted an...