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United States v. Herring

United States Court of Appeals, Tenth Circuit

August 27, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
LAWRENCE PAUL HERRING, Defendant-Appellant.

          Appeal from the United States District Court for the District of Utah D.C. Nos. 2:17-CV-00410-TS and 2:15-CR-00743-TS-1

          Zachary L. Newland (Brandon C. Sample, with him on the briefs), Brandon Sample PLC, Rutland, Vermont, for Defendant-Appellant.

          Jennifer P. Williams, Assistant United States Attorney (John W. Huber, United States Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

          Before MATHESON, EBEL, and PHILLIPS, Circuit Judges.

          EBEL, CIRCUIT JUDGE.

         Lawrence Herring appeals from the denial by the district court of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. We granted a certificate of appealability to determine whether the district court erred in denying, without a hearing, Herring's claim that his trial counsel's failure to consult with him about an appeal constituted ineffective assistance of counsel.[1] We exercise jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We conclude that the district court abused its discretion under 28 U.S.C. § 2255(b) by failing to hold an evidentiary hearing to resolve Herring's section 2255 motion because the record does not "conclusively show" that Herring is entitled to no relief. Thus, we VACATE the district court's dismissal of Herring's motion and REMAND for an evidentiary hearing.

         I. BACKGROUND

         On May 2, 2016, Herring pled guilty to one count of possession of child pornography pursuant to a plea agreement, which included a waiver of many of Herring's appeal rights, except for his ability to appeal claims of ineffective assistance of counsel. In exchange for Herring's guilty plea, the government agreed to recommend at sentencing a term of incarceration at the low end of the Sentencing Guideline range, which was 78-97 months. The district court sentenced Herring to sixty months' imprisonment. At the sentencing hearing, the district court advised Herring that, despite waiving many of his appellate rights through the plea agreement, he retained the right to appeal under very narrow circumstances. The district court informed Herring that any notice of appeal he wished to file was due fourteen days after the entry of judgment and that, if he requested it, the Clerk of Court would prepare and file a notice of appeal on his behalf. Finally, the district court explained that the court could appoint an attorney for Herring on appeal if he could not afford one.

         Judgment was entered in Herring's case on May 5, 2016. That same day, Herring met with his trial counsel. In his section 2255 motion, Herring alleged that he told his attorney "specifically that he wanted to appeal his case," Aplt. Appx. at 34. (Although he concedes on appeal that he did not explicitly command his attorney to file a notice of appeal.) According to the motion, in response, Herring's attorney said that "he did not do appellate work and that he would not be able to do it. . . . [Herring's trial counsel] flatly stated [that Herring] had waived [his] right to appeal in the plea agreement and offered no further options other than to contact another attorney." Id. at 18. Furthermore, Herring alleged that his attorney never told him that "there was no merit to appealing his case" nor offered any other "advice regarding appealing" besides referring Herring to other attorneys. Id. at 35.

         The trial counsel's account of what happened on May 5 appears in his affidavit in the record. There, he describes the exchange as follows:

I told Mr. Herring that I do not do any appellate work and that he would need to find another attorney on or about May 5, 2016. I sent a request out to a Utah Association of Criminal Defenders Lawyers forum
requesting appellate attorneys on or about May 5, 2016. I received a list of attorneys who had Federal appellate expertise. I gave that list to him, and I discussed the case with one of those attorneys, Ann Marie Taliaferro. She indicated that my advice was correct, and he had no appellate rights he could use. I was never asked by Mr. Herring to file an appeal on his behalf.

Id. at 32-33 (formatting removed). Soon after their May 5 conversation, the attorney mailed Herring a list of three appellate attorneys for Herring to contact. The trial counsel had no contact with Herring after that point. Herring did not contact any of the attorneys on the list nor the district court to seek the appointment of counsel nor the Clerk of Court to request that the Clerk file his notice of appeal. The deadline for filing a notice of appeal came and went, and Herring never filed.

         Herring subsequently filed a 28 U.S.C. § 2255 motion pro se, [2] claiming his attorney was ineffective for failing to consult with him about the advantages and disadvantages of filing an appeal.[3] The district court dismissed Herring's motion without holding an evidentiary hearing. Herring appeals, arguing that he was entitled to a hearing and that the district court wrongly decided the merits of his ineffective assistance of counsel claim.

         Section 2255(b) instructs district courts: "[u]nless the [2255] motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." Ordinarily, when reviewing the denial of a section 2255 motion, "we review for clear error the district court's factual findings, and we review legal conclusions de novo." United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002). However, when a district court refuses to grant an evidentiary hearing and denies a section 2255 motion, our review proceeds in two steps. Weeks, 653 F.3d at 1200. First, we ask whether the defendant's allegations, if proved, would entitle him to relief, id., an inquiry we conduct de novo, United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011). If so, we then determine whether the denial of the evidentiary hearing constituted an abuse of discretion. Weeks, 653 F.3d at 1200; see also United States v. Estrada, 849 F.2d 1304, 1305 (10th Cir. 1988). Here, we hold that, if true, the facts Herring alleged in his section 2255 motion to support his ineffective assistance of counsel claim would entitle him to relief. Therefore, the record does not "conclusively show" that ...


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