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. For what a 2255 motion is, read the overview on the home page.
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 Flores-Ortega requires
In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court held that counsel has a constitutional duty to consult with the defendant about an appeal when there is reason to think a rational defendant would want to appeal or when the defendant reasonably demonstrated an interest in appealing. Id. at 480. Consultation means advising about the advantages and disadvantages of taking an appeal and making a reasonable effort to discover the defendant’s wishes. Id. at 478.
Herring applies that duty in a common setting: the trial lawyer will not handle the appeal. The Tenth Circuit’s point is that the duty to consult is not optional and cannot be handed off with a bare referral to “find another lawyer,” especially when the client has said he wants to appeal.
Why a hearing mattered
Section 2255(b) requires a hearing unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. The district court had denied a hearing. The Tenth Circuit held that Herring’s allegations, if true, stated a claim under Flores-Ortega, so the record did not conclusively defeat the claim. The remand was for fact-finding — not an order granting resentencing or a new appeal on the spot.
Plea waivers and the remaining appeal rights
Herring’s plea agreement waived many appeal rights but preserved claims of ineffective assistance of counsel. That structure is common. A waiver does not erase counsel’s duty to consult about an appeal when the client asks about one, and it does not turn a bare “I don’t do appeals” response into adequate advice. The preserved ineffective-assistance claim is often the vehicle — through a § 2255 motion — for testing whether the consultation duty was met after sentencing.
The 14-day deadline for a criminal notice of appeal is short. Fed. R. App. P. 4(b)(1)(A). Once it passes without a notice of appeal, a § 2255 motion alleging a failure to consult is frequently the remaining path. That is why Flores-Ortega and cases like Herring matter in post-conviction practice: they define when the failure to advise about an appeal is a constitutional claim the district court must hear.
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.
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