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Tenth Circuit: District Court Abused Discretion in Denying § 2255 Petition Without Hearing Where Record Didn’t Conclusively Show Defendant Not Entitled to Relief

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit ruled that a district court abused its discretion when it denied a 28 U.S.C. § 2255 petition without an evidentiary hearing when the record did not conclusively show the movant was not entitled to relief. 

Pursuant to a plea agreement, Lawrence Herring pleaded guilty to one count of child pornography and waived many of his appeal rights in exchange for the Government’s agreement to recommend a sentence at the lower end of his Guideline range of 78-97 months. 

At the sentencing hearing, the district court advised Herring that despite waiving many of his appellate rights, he retained the right to appeal under very narrow circumstances. The court explained the notice of appeal had to be submitted within 14 days, and the court could appoint an attorney for the appeal if Herring could not afford one. Herring was sentenced to 60 months’ imprisonment. Months later, Herring filed a § 2255 motion, alleging that he told his attorney “specifically that he wanted to appeal his case.” Herring alleged in his motion that his attorney responded by stating the attorney did not do appellate work and told Herring that he had waived his right to appeal. Herring’s attorney offered him no other options except to tell Herring to hire a different attorney.

The attorney submitted an affidavit in response to the § 2255 motion, stating he told Herring he did not do appellate work and that he would have to find another attorney; and provided Herring with a list of appellate attorneys. The deadline for the notice of appeal passed without one being filed. In his § 2255 motion, Herring claimed his attorney was ineffective for failing to consult with him about the advantages and disadvantages of taking an appeal. The district court denied the motion without holding an evidentiary hearing. Herring appealed, arguing he was entitled to a hearing.

The Tenth Circuit observed that § 2255(b) instructs district courts: “Unless the [2255] motion and the files and records of the case conclusively show that a prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law with respect thereto.” When a district court denies a motion without a hearing, the Court of Appeals first asks whether the defendant’s allegations, if proved, would entitle him to relief, and if so, then the Court determines if the district court abused its discretion. United States v. Weeks, 653 F.3d 1188 (10th Cir. 2011). 

An attorney renders ineffective assistance if his (1) performance was deficient and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668 (1984). In some circumstances, an attorney is constitutionally required to consult with the defendant about appealing. Roe v. Flores-Ortega, 528 U.S. 470 (2000). “Consult” is defined as “advising the defendant about the advantages and disadvantages of taking an appeal and making a reasonable effort to discover the defendant’s wishes.” Id. This duty is imposed on counsel when (1) there is reason to think a rational defendant would want an appeal or (2) the defendant has reasonably demonstrated to counsel he is interested in appealing. Id. The failure to consult under either of those circumstances constitutes deficient performance. Id. To show prejudice, the defendant must demonstrate a reasonable probability that, but for counsel’s deficient performance, he would have taken an appeal. Id. This demonstration does not require the defendant to identify his possible appellate issues. Id.

The Tenth Circuit determined that Herring’s allegations, if proved, entitled him to relief. He alleged that he made known to his attorney that he wanted to appeal, and he alleged his attorney failed to consult with him about the advantages and disadvantages of taking an appeal. The Court further determined that the district court abused its discretion because the record did not conclusively refute Herring’s allegations. In fact, his attorney’s affidavit stated the attorney only told Herring to find another attorney because his trial attorney did not do appellate work. That advice did not satisfy the definition of “consulting” about an appeal. 

Accordingly, the Court vacated the district court’s dismissal of Herring’s motion and remanded for an evidentiary hearing. See: United States v. Herring, 935 F.3d 1102 (10th Cir. 2019). 

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United States v. Herring



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