In re Sealed Case

The D.C. Circuit affirmed a judgment entered by the district court after the defendant pleaded guilty to a two-count indictment charging him with drug and weapons violations and was sentenced. On appeal, the defendant challenged his sentence under 28 U.S.C. 2255, arguing that his counsel provided ineffective assistance by failing to file a notice of appeal after sentencing. Although the appeals court found that defense counsel failed to adequately consult with the defendant regarding an appeal, as contemplated by Roe v. Flores-Ortega (2000), it also noted that under Flores-Ortega , counsel's constitutional duty to consult arises only "when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." The court agreed with the government that in this case there would have been only frivolous grounds for appeal and ruled that it could not find defense counsel's actions to have constituted deficient performance.

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Argued May 8, 2008

Before: TATEL, BROWN, and KAVANAUGH, Circuit Judges.

After pleading guilty to a two-count indictment charging him with distribution of more than 50 grams of cocaine base and carrying a pistol without a license, appellant received a 262-month sentence, which was at the bottom of the guideline range given appellant’s status as a “career offender.” See U.S. SENTENCING GUIDELINES MANUAL § 4B1.1 (1997). After the sentencing hearing, appellant met briefly with his attorney in the lock-up behind the courtroom. During the meeting, defense counsel recalled, “I told him of his right to appeal in 10 days. But I also told him that at this point I don’t seeany issues with regard to an appeal because everything was according to sentencing guidelines. But he need[ed] to contact me in order for me to notice his appeal.” Hr’g Tr. at 20 (Oct. 14, 2003). When asked how his client responded, the attorney said, “He wasn’t responding. He was really disappointed at that point because of the substantial sentence that he received. And at that point, I told him to contact me if he wanted to appeal and I left.” Id. According to the attorney, the meeting “was really fast. It was probably perhaps two to three minutes I talked to him. I believe the judge had another matter, so I didn’t want to take too much time.” Id. at 22. Appellant made no contact with counsel during the ten-day window, and counsel never filed a direct appeal of the sentence.

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