Brandon Sample Wins Again!

Brandon Sample’s Recent Court Win! – United States v. Herring

For Brandon Sample PLC, August 27, 2019 was a good day.  That is because that was the day that the United States Court of Appeals for the Tenth Circuit filed its decision in United States v. Herring, announcing Brandon Sample’s successful representation of Mr. Herring. Following this decision, Mr. Herring will now be able to get his day in court.

Given that Brandon Sample PLC has significant experience with post-conviction relief motions under 28 U.S.C. § 2255, we thought we would take this opportunity to talk about the facts and holding of United States v. Herring, to demonstrate how Section 2255 motions can help you.

Before getting into the details of the firm’s success in Herring, let’s first talk a little about the mechanics of a Section 2255 motion.

What is a 2255 Motion?

A motion under Section 2255 is a way for a federal prisoner to mount an attack on his or her conviction or sentence.  A Section 2255 motion is considered a “collateral” attack because it is a way to challenge a federal conviction or sentence in a forum that is not the court proceeding that led to the conviction or sentence in the first place.  Rather, it is a claim brought separately from any direct post-conviction motions or appeals.

Why Was United States v. Herring Based on a Section 2255 Motion?

In Herring, as will be discussed in more detail below, the defendant pleaded guilty and was sentenced to federal prison.  He soon concluded that it was likely that his trial counsel was ineffective because the counsel failed to consult with Mr. Herring regarding a possible appeal.

Because Mr. Herring’s avenues for a direct appeal were foreclosed, a Section 2255 motion was the best course of action for him.  To learn more about the ins and outs of Section 2255 motions, Brandon Sample PLC has created a website specifically for that purpose.  Check out for more information.

Now, let us discuss the United States v. Herring case itself.

The Facts in Herring – Trial Counsel Did Not Want to Discuss Appeal Options

On May 2, 2016, Mr. Herring pleaded guilty to one count of a federal indictment.  The plea agreement called for Mr. Herring to waive many of his appeal rights, except for his ability to make an ineffective assistance of counsel claim.  In exchange for his plea, the prosecution agreed to recommend a sentence at the lower end of the Sentencing Guidelines range.  The trial court ultimately sentenced him to five years in prison.

At sentencing, the trial court advised Mr. Herring that if he wished to file an appeal, then he would need to file a preliminary document – a notice of appeal – within 14 days of the entry of judgment in his case, which happened on May 5, 2016.

On the 5th, Mr. Herring met with his trial counsel and told him that he wanted to appeal his case.  Mr. Herring’s attorney responded that he “did not do appellate work” and that he would not be able to do Mr. Herring’s appeal.  Further, the trial counsel stated, bluntly, that Mr. Herring had waived his right to appeal under the plea agreement.  The trial counsel offered no options to Mr. Herring except that he should contact another lawyer.

Significantly, the trial counsel did not offer any advice regarding whether to appeal, or the merits of any possible appeal.  Accordingly, the deadline for filing a notice of appeal came and went.

Mr. Herring’s Section 2255 Motion – Dismissed Without a Hearing

Upon realizing that trial counsel should have given him more advice than just to “get another lawyer,” Mr. Herring filed a motion under Section 2255.  In that motion, he claimed that his trial counsel was ineffective.  Specifically, Mr. Herring argued to the district court that his trial counsel should have given him some advice with regard to appeal options, and that the counsel was ineffective for not doing so.

The district court, however, dismissed the motion without holding an evidentiary hearing.  Not allowing a hearing foreclosed Mr. Herring’s opportunity to present evidence to prove that his trial counsel was ineffective.

With the help of Brandon Sample PLC, Mr. Herring appealed the district court’s decision.

A Successful Appeal Thanks to Brandon Sample PLC – Reversing the District Court’s Dismissal

Under Section 2255, an individual should be given an evidentiary hearing unless the individual has no chance for relief.  Mr. Herring argued that the district court was wrong to dismiss his Section 2255 motion because he, in fact, had a good chance for relief given his trial counsel’s inaction.

Following grueling litigation on appeal, the Tenth Circuit ultimately agreed with Mr. Herring’s position, thanks to the zealous advocacy of Brandon Sample’s firm.  Specifically, the Tenth Circuit looked at whether Mr. Herring’s ineffective assistance claims may entitle him to relief.  The appeals court found that Mr. Herring’s attorney was constitutionally obligated to consult with him regarding the advantages and disadvantages of filing an appeal.

The appeals court was clear to point out that “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.”

In this case, it was clear that Mr. Herring wanted to appeal.  He said as much to his trial counsel on May 5, 2016, three days after his sentencing.  His trial counsel – knowing Mr. Herring’s wishes – needed to do more than just tell him to talk to another attorney.

Even if Mr. Herring’s trial counsel would be unable to handle the appeal, for whatever reason, that does not mean that the trial counsel’s obligations stop at sentencing.  Rather, trial counsel has a duty to discuss the costs and benefits of an appeal before withdrawing his representation.

The Tenth Circuit easily recognized that Mr. Herring’s trial counsel did not give him any information, advice, or guidance on the appeal decision whatsoever.  The Court saw that it is possible that his trial counsel was, in fact, ineffective.  Accordingly, the Tenth Circuit concluded that Mr. Herring should at least have his day in court, so he has the opportunity to prove that his trial counsel was ineffective.

Therefore, the Tenth Circuit reversed the district court’s denial of an evidentiary hearing for Mr. Herring.  The next step is to go back to the district court and present evidence on ineffectiveness.

Brandon Sample’s Conclusion

The United States v. Herring case is not only a great success for Brandon Sample PLC, but it shows that Section 2255 motions can help federal prisoners challenge their convictions and sentences, even if direct appeals are no longer an option.  To learn more about whether a Section 2255 motion is an option in your case, call Brandon Sample PLC at 802-444-4357.

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

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