The notice of appeal problem in criminal cases

I have a problem. My problem relates to motions to vacate under 28 U.S.C. § 2255. I hope readers who practice criminal law in the federal courts can help me.

If a defendant does not take a direct appeal, and later files a section 2255 motion alleging ineffective assistance of counsel on the basis that defense counsel was told to take an appeal but failed to do so, as the law stands now I must appoint counsel and hold an evidentiary hearing even if the first lawyer submits an affidavit denying that he or she was told to appeal. Here is a recent such case from Nebraska, although it is not mine, where the Court of Appeals reversed the denial of a section 2255 motion precisely on this basis. Franco v. United States, No. 13-2607 (8th Cir., August 8, 2014).

After I sentence a person I scrupulously comply with the Federal Rule of Criminal Procedure 32(j).  Specifically, I give a detailed description of how and when a defendant may appeal. I make clear that the defendant has 14 days to file the notice of appeal. I use simple words and then ask the offender whether he or she has any questions.  I specifically invite a discussion on the subject. Moreover, before I leave the bench, I tell the defendant that my court clerk will hand the defendant a written summary of what I just told the defendant as soon as I am gone. I add that the defendant can speak with the clerk at that time and she will file a notice of appeal for the defendant if the offender merely asks her to do so. See Federal Rule of Criminal Procedure 32(j)(2).

Here is the notice the defendant and his or her counsel receives from my clerk immediately after I leave the bench:

TO: Each defendant and his/her counsel:

(1) Unless a defendant has given up his or her right to appeal (for example, by signing a waiver in a plea agreement approved by the court), you are notified that every defendant has a right to appeal. Appeal means to have a defendant’s conviction or sentence reviewed by a higher court. A conviction may be appealed because it was obtained in violation of the law. A sentence may be appealed because it was imposed in violation of the law. If a defendant was convicted after a trial, the defendant may appeal the conviction and the sentence. If a defendant was sentenced after a plea of guilty or “no contest,” the right to appeal is generally limited to appealing the sentence.

(2) To start an appeal, a notice of appeal must be filed with the Clerk of the United States District Court for the District of Nebraska. A defendant may file the notice of appeal. Also, if the defendant tells his or her lawyer to file the notice of appeal, the lawyer is obligated to do so. In addition, if a defendant tells a court clerk to file the notice of appeal, the court clerk is required to do so.

(3) A notice of appeal must be timely filed in the district court, generally within fourteen days after the entry of the judgment or order from which an appeal is taken. This normally means that a notice of appeal must be filed in the district court within fourteen days of today’s date. If the notice of appeal is not timely filed, a defendant may lose his or her right to appeal.

(4) Every defendant who is unable to pay the expenses of an appeal has the right to apply for permission to appeal without payment of a filing fee or costs. In addition, every defendant who is unable to pay for a lawyer may apply for the appointment of lawyer to represent the defendant during the appeal at no cost to the defendant. In other words, even though a defendant is poor, the defendant’s poverty need not prevent an appeal.

Receipt of the foregoing notice is acknowledged this day of
, 20 , immediately after sentencing, by:

 _______________________                             ___________________________

Signature of defendant                                      Signature of defense counsel

(The deputy clerk of the court is directed to give a copy of this notice to each defendant and his/her counsel immediately after sentencing. The deputy clerk of the court shall then set forth in a copy of the notice the date the notice was given. The deputy clerk shall then procure the signature of the defendant and his/her counsel on a copy of the notice. The signed copy of the notice shall then be filed in the court file by the deputy clerk.)*

The notice is signed by the defendant and his or her counsel. It is filed in the court file.

At the same time as the foregoing notice is is delivered and signed, defense counsel is additionally handed a copy of Eight Circuit Rule 27C. The lawyer acknowledges receipt of the rule, and that acknowledgment is filed in the court file. Here is the form:



(a) Notices of Appeal. Retained counsel in criminal cases, and counsel appointed to represent a party pursuant to the provisions of the Criminal Justice Act, 18 U.S.C. § 3006A, Federal Rule of Criminal Procedure 44, or the inherent power of a federal court, shall file a notice of appeal upon their client’s request. Defendant’s trial counsel, whether retained or appointed, shall represent the defendant on appeal, unless the Court of Appeals grants permission to withdraw.

(b) Motions to Withdraw. A motion to withdraw on the ground that in counsel’s opinion there are no non-frivolous issues to be urged on appeal must be accompanied by a brief prepared in accordance with the procedures enunciated in Anders v. California, 386 U.S. 738 (1967), and Robinson v. Black, 812 F.2d 1084 (8th Cir. 1987). A motion to withdraw on any other ground will only be granted for good cause shown, and will rarely be granted unless another attorney has entered an appearance for the defendant on appeal or another attorney has agreed to represent the defendant on appeal and the defendant has consented to the appearance of that new attorney.

As defense counsel, I acknowledge receipt of 8th Circuit’s Rule 27C.


Now, here is my problem. If the defendant later claims that he or she told defense counsel to file a notice of appeal, but that claim is not true, is there anyway to avoid the time and trouble of appointing a lawyer to represent the defendant and then conducting an evidentiary hearing?  I ask this question because: (1) I trust most criminal defense lawyers to file a notice of appeal if directed to do so; (2) there is little incentive for offenders not to lie about whether they instructed their counsel to appeal and in fact I have a strong suspicion that the prison “writ” writers frequently make this type of allegation without specifically consulting the prisoner for whom they are writing the 2255 motion; (3) allowing an offender to attack defense counsel based upon nothing more than the say so of the offender seems wrong to me since the consequence to the lawyer is significant–getting dragged into court to testify when the claim alone has the real potential to sully the accused lawyer’s reputation; (4) the consequences to the court are not small either, as the requirement of an evidentiary hearing requires under the rules the appointment of yet another lawyer (Rule 8(c) of the Rules Governing Section 2255 Proceedings) and the evidentiary hearing and subsequent proceedings suck up large amounts of time; (5) almost never is the defendant’s claim upheld after an evidentiary hearing (which in our court would be held by a magistrate judge with a follow-up a report and recommendation to me) since history proves that most lawyers in fact comply with their legal and ethical obligations to file notices of appeal when directed to do so.

Is there any solution to avoiding these frequently fruitless hearings that do little but harm the reputations of conscientious defense counsel and waste time and money? I would appreciate the advice of defense counsel who confront this problem on a regular basis.


*If the defendant cannot speak English, the interpreter reads the document to the defendant in his or her native tongue.

PS Thanks to Elaine Mittleman for stimulating my thoughts on this subject.

A judge and a prosecutor “collude” to do the right thing

A helpful reader has called to my attention this article that appeared yesterday in the New York Times involving Loretta E. Lynch, who is the United States attorney for the Eastern District of New York. We hear a lot about prosecutorial abuse. We seldom here about prosecutors doing the right thing. In the unique case mentioned in the article which involved a crime of violence, you will see a fine example of prosecutorial discretion used to treat an offender–who made a stupid mistake by rejecting a plea agreement–with a degree of fairness that is remarkable.  You shouldn’t be surprised to know that District Judge John Gleeson plays a prominent role in this story.*


A thoughtful reader commented:

Interested in whether you have any concern, as a judge, that the U.S. Attorney had no more legal authority to undo this injustice than did the judge. At least, I can think of none. Unless I am missing something, all the U.S. Attorney did or agreed to do here is (a) not object to the judge’s doing something unlawful — again, otherwise right and just, but nevertheless, unlawful — and then (b) not appeal. The underlying injustice arose from a technically correct application of a stupid, cruel and badly written law (18 USC 924(c)), aggravated by one of the worst, hypertechnical, and thoroughly obtuse statutory construction decisions in modern Supreme Court history, Deal v. United States, 508 U.S. 129 (1993). Deal was authored by Justice Scalia, but it was a six-vote majority. Deal mandated (quite unnecessarily and mistakenly, as Justice Stevens’ dissent shows) this sort of “stacking” of consecutive sentences.

Comment by pdgpa, July 29, 2014 at 9:45 AM (italics added by Kopf).

I read Judge Gleeson’s (Gleason) opinion. He used a Rule 60(b) motion to reopen a prior 28 U.S.C. § 2255 proceeding  (Keep in mind that section 2255 proceedings are technically civil in nature.) Rule 60(b)(6) provides that the judge may grant relief from a final judgment “for any other reason that justifies relief.”  Since the United States consented to the vacation of counts of conviction that were “stacked” for sentencing purposes, and section 2255 explicitly gives district judges the power to vacate sentences that “are otherwise subject to collateral attack,” Judge Gleeson arguably had the legitimate power to vacate the underlying sentence.  While reasonable minds can differ about whether Holloway should catch a break while many others who are similarly situated will not enjoy similar treatment, it appears that Judge Gleeson acted lawfully.


*Long ago, I unsuccessfully tried a similar tactic in the infamous case of Hamedah Hasan where she too made a horrible mistake, rejecting a plea agreement, and ending up with a mandatory life sentence (later reduced through no help of the United States Attorney or the Justice Department). See, and here.

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