Submitted April 17, 2015
Appeal from United States District Court for the Western District of Missouri - Kansas City.
For Teresa Witthar, Movant - Appellant: Andrea L. Smith, Kirkwood, MO.
Teresa Witthar, Movant - Appellant, Pro se, Waseca, MN.
For United States of America, Respondent - Appellee: Lajuana M. Counts, Assistant U.S. Attorney, David M. Ketchmark, Assistant U.S. Attorney, U.S. Attorney's Office, Kansas City, MO.
Before WOLLMAN and GRUENDER, Circuit Judges, and GRITZNER, District Judge. GRUENDER, Circuit Judge, concurring.
Teresa Witthar petitioned for relief under 28 U.S.C. § 2255, arguing that she was denied effective assistance of counsel when her attorney failed to file a requested notice of appeal. The district court denied Witthar's petition on the merits without an evidentiary hearing. We reverse and remand.
Witthar pleaded guilty to conspiracy against rights, obstruction of justice, and interference with fair housing rights. See 18 U.S.C. § § 241, 1512(b)(1); 42 U.S.C. § 3631. In her plea agreement, Witthar waived her right to appeal or collaterally attack a finding of guilt. She further waived her right to appeal or collaterally attack her sentence on any ground except: (1) ineffective assistance of counsel, (2) prosecutorial misconduct, (3) a sentence imposed in excess of the statutory maximum, or (4) an illegal sentence. In exchange, the Government agreed to advocate for a sentence at the bottom of her advisory guidelines range, to dismiss the four other counts of the indictment, and to refrain from bringing additional charges related to her crimes. The district court sentenced Witthar to 63 months' imprisonment, a sentence at the bottom of her advisory guidelines range. No appeal followed.
Eleven months later, Witthar filed a pro se petition under 28 U.S.C. § 2255, alleging, among other claims of ineffective assistance of counsel, that her attorney had failed to file a requested notice of appeal. Witthar claimed that she had asked her attorney to file an appeal after sentencing, but he " refused" to speak with her about it and " said he was finished with [her] case and that was it." The district court ordered the Government to show cause why relief should not be granted, and, in response, the Government submitted an affidavit from Witthar's attorney stating that Witthar had not asked him to file an appeal. The Government also argued that Witthar's petition was factually deficient because it presented only conclusory allegations. See Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985). The district court denied Witthar's § 2255 failure-to-appeal claim without conducting an evidentiary hearing because it found that Witthar's " bare, conclusory allegations" did not entitle her to relief. The court denied relief on her other ineffective assistance of counsel claims either because they were precluded by her waiver of collateral attack or because she did not make the required showing of deficient performance and prejudice.
Before us, Witthar challenges only the district court's resolution of her claim regarding counsel's failure to file the requested appeal. She contends that the court erred by denying relief without holding an evidentiary hearing. " Evidentiary hearings on 28 U.S.C. § 2255 motions are preferred, and the general rule is that a hearing is necessary prior to the motion's disposition if a factual dispute exists." Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir. 2013), cert. denied, 572 U.S.
__, 134 S.Ct. 2323, 189 L.Ed.2d 198 (2014). A petitioner " is entitled to an evidentiary hearing . . . unless 'the motion and the files and the records of the case conclusively show that [she] is entitled to no relief.'" Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (quoting 28 U.S.C. § 2255(b)). " We review a district court's decision to deny an evidentiary hearing for abuse of discretion; however, we are obligated 'to look behind that discretionary decision to the court's rejection of the claim on its merits, which is a legal conclusion that we review de novo.'" Thomas, 737 F.3d at 1206 (quoting Noe v. United States, 601 F.3d 784, 792 (8th Cir. 2010)).
When a petitioner claims ineffective assistance of counsel, she generally must establish: (1) that her counsel's performance " fell below an objective standard of reasonableness" and (2) that she suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An attorney's failure to file a requested appeal automatically satisfies the deficient-performance prong of Strickland because it is " professionally unreasonable." Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)). " This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel," and counsel's " failure to file reflects inattention to the defendant's wishes." Flores-Ortega, 528 U.S. at 477. And if an attorney fails to honor this request, the defendant forfeits her right to an appellate proceeding. Id. at 483.
No showing of prejudice is required in this unique circumstance. Barger v. United States, 204 F.3d 1180, 1182 (8th Cir. 2000) (noting that " no inquiry into prejudice or likely success on appeal [is] necessary" ). An attorney's failure to file a requested appeal amounts to the denial of counsel's assistance at a critical stage of the judicial proceeding. United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). And when a defendant is denied, either actually or constructively, such assistance, " 'the adversary process itself [is] presumptively unreliable.'" Flores-Ortega, 528 U.S. at 483 (alteration in original) (quoting Cronic, 466 U.S. at 659). The court thus does not require an affirmative showing on the second prong of Strickland. Instead, prejudice is presumed. Id.
Like many of our sister circuits, we extend the presumption of prejudice even to cases in which the petitioner has waived her right to appeal. Watson, 493 F.3d at 960; accord Campbell v. United States, 686 F.3d 353, 357-60 (6th Cir. 2012); United States v. Poindexter, 492 F.3d 263, 268-69 (4th Cir. 2007); United States v. Tapp, 491 F.3d 263, 265-66 (5th Cir. 2007); Campusano v. United States, 442 F.3d 770, 772-77 (2d Cir. 2006); Gomez-Diaz v. United States, 433 F.3d 788, 791-94 (11th Cir. 2005); United States v. Sandoval-Lopez, 409 F.3d 1193, 1195-99 (9th Cir. 2005); United States v. Garrett, 402 F.3d 1262, 1265-67 (10th Cir. 2005). We have reasoned that " [t]he 'limited perspective of collateral review' is not the appropriate vantage point from which to assess whether [a petitioner] might have any meritorious issues that can be raised on appeal in spite of [a] waiver." Watson, 493 F.3d at 964 ...