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Not Appealing After Waiving Appeal Means You're Ineffective?

By Robyn Hagan Cain on July 24, 2012 | Last updated on March 21, 2019

So your client took a plea bargain and (mostly) waived his right to appeal. You didn't file a notice of appeal for him.

Congratulations, you may have provided ineffective counsel, according to the Sixth Circuit Court of Appeals.

Robert Campbell, a Lima, Ohio real-estate investor, was accused of participating in a mortgage-fraud conspiracy by falsifying mortgage documents, covertly paying borrowers' closing costs, and flipping properties bought by a straw purchaser and resold to Campbell at an inflated price. At his arraignment, Campbell agreed to waive indictment and plead guilty. Pursuant to the plea agreement, Campbell also agreed, with only a few exceptions, to waive his right to appeal.

The district court imposed a below-Guidelines sentence of eight months in prison and a $35,000 fine. The court informed Campbell that, to the extent that he did have grounds to appeal, he needed to do so within 10 days of the entry of final judgment. No notice of appeal was filed.

Six weeks later, Campbell filed a motion to vacate, set aside, or correct a sentence. The motion raised two ineffective counsel concerns:

  • Whether Campbell was denied effective assistance of counsel when his attorney failed to file a requested notice of appeal.
  • Whether counsel was ineffective in permitting Campbell to plead guilty when, according to Campbell, he is actually innocent.

Without conducting a hearing, the district court rejected Campbell's claims. The Sixth Circuit Court of Appeals vacated that decision this week.

To prevail on an ineffective counsel claim, a defendant must prove that counsel's performance was deficient and the deficient performance prejudiced the defense. 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." In Roe v. Flores-Ortega, the Supreme Court applied the Strickland test to a case involving an attorney's failure to file a notice of appeal.

Campbell claimed that he asked his attorney to file the notice of appeal. It's unclear from the record if that is true, but that question was enough to persuade the Sixth Circuit Court of Appeals to remand the case to the district court for a factual finding on the issue.

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