A trial lawyer has a constitutional duty to talk with the client about whether to appeal. Telling the client “I don’t do appeals, find another lawyer” is not enough. The Tenth Circuit said so in United States v. Herring, a § 2255 appeal handled by Brandon Sample, and sent the case back for a hearing.
Case: United States v. Herring
Source: United States v. Herring, No. 18-4023 (10th Cir. Aug. 27, 2019) (published opinion) (PDF), reported at 935 F.3d 1102.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
On August 27, 2019, the United States Court of Appeals for the Tenth Circuit decided United States v. Herring. Brandon Sample represented Mr. Herring on appeal. The court reversed the district court’s denial of an evidentiary hearing and sent the case back so Mr. Herring could try to prove his claim. The decision did not itself grant him relief.
Here is what happened, and what the case shows about § 2255 motions.
What is a 2255 motion?
A § 2255 motion is a way for a person in federal custody to challenge a conviction or sentence. It is called a “collateral” attack because it is brought separately, after the criminal case and any direct appeal.
Why was Herring a § 2255 case?
Mr. Herring pleaded guilty and was sentenced to federal prison. He believed his trial lawyer was ineffective for failing to consult with him about an appeal.
Because the time for a direct appeal had passed, a § 2255 motion was the way to raise that claim. Read more about ineffective assistance related to the appeal.
The facts: the lawyer would not discuss an appeal
On May 2, 2016, Mr. Herring pleaded guilty to one count of a federal indictment. His plea agreement waived many of his appeal rights but kept his right to claim ineffective assistance of counsel. The prosecution agreed to recommend a sentence at the low end of the Sentencing Guidelines range. The court sentenced him to five years in prison.
At sentencing, the court told Mr. Herring that to appeal he had to file a notice of appeal within 14 days after judgment was entered. Judgment was entered on May 5, 2016.
On May 5, Mr. Herring met with his lawyer and said he wanted to appeal. According to Mr. Herring, the lawyer said he “did not do appellate work,” would not handle the appeal, and that Mr. Herring had waived his appeal rights in the plea agreement. The lawyer told him only to contact another lawyer.
The lawyer did not advise him about whether to appeal or about the merits of an appeal. The deadline for a notice of appeal passed.
The § 2255 motion was dismissed without a hearing
Mr. Herring filed a § 2255 motion claiming his lawyer was ineffective for not advising him about an appeal. The district court dismissed it without an evidentiary hearing, so he never had the chance to present evidence.
Mr. Herring then appealed that decision, represented by Brandon Sample.
The Tenth Circuit reversed
A § 2255 movant is entitled to an evidentiary hearing unless the motion and the record conclusively show he is entitled to no relief. 28 U.S.C. § 2255(b). Mr. Herring argued his allegations, if true, would entitle him to relief.
The Tenth Circuit agreed that a hearing was required. It held that Mr. Herring’s lawyer had a constitutional duty to consult with him about the advantages and disadvantages of an appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 478-80 (2000).
As the court put it, “Trial attorneys cannot outsource their constitutional obligation to advise their clients about filing an appeal nor their duty to make a reasonable effort to discover their client’s wishes.”
According to Mr. Herring’s allegations, he told his lawyer he wanted to appeal three days after sentencing. A lawyer who knows that needs to do more than say “talk to another attorney.” Even if a trial lawyer will not handle an appeal, the duty to consult does not end at sentencing.
Because the record did not show that the lawyer gave any advice about the appeal decision, the Tenth Circuit reversed and sent the case back to the district court for an evidentiary hearing on whether the lawyer was ineffective.
What does Herring show?
Herring shows that § 2255 motions can let people in federal custody raise serious problems with their cases even after the time for a direct appeal has passed. Every case turns on its own facts.
Questions about your case? Book a consultation to talk it through with Brandon Sample.