Christopher Shelton v. United States

378 F. App'x 536
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 20, 2010
Docket08-5817
StatusUnpublished
Cited by3 cases

This text of 378 F. App'x 536 (Christopher Shelton v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Christopher Shelton v. United States, 378 F. App'x 536 (6th Cir. 2010).

Opinions

RALPH B. GUY, JR., Circuit Judge.

Petitioner Christopher Lamont Shelton, a federal prisoner, appeals pro se from the district court’s denial of his § 2255 motion to vacate, alter, or amend sentence on the grounds of ineffective assistance of counsel. Specifically, petitioner claims that his court-appointed attorney failed to file a timely notice of appeal, despite having been instructed to do so at the time of sentencing. The district court found that petitioner had not directed his attorney to file an appeal and, therefore, that petitioner failed to establish a Sixth Amendment violation. After review of the record, we affirm and deny petitioner’s motion for appointment of counsel.

I.

Petitioner was charged in 2002 with obstructing, delaying, and affecting commerce by robbery in violation of the Hobbs Act; using, carrying, and brandishing a firearm during a crime of violence; and being a felon in possession of a weapon. After an unsuccessful attempt to suppress evidence, petitioner entered into a plea agreement, which provided, in part, that the government would recommend a 3-level reduction in the offense level for acceptance of responsibility, would recommend a sentence at the bottom of the anticipated sentencing guidelines range of 235 to 272 months, and would waive the [537]*537right to appeal from any downward departure the court might grant. Petitioner was not precluded from seeking a downward departure, but would plead guilty to all three counts and expressly waive the right to appeal a sentence within the guidelines or bring a collateral attack on the plea or sentence, except to challenge an upward departure or to assert claims of prosecutorial misconduct or ineffective assistance of counsel.

The guilty pleas were accepted by the district court, and petitioner’s counsel filed several motions for downward departure— including motions based on the mental health examinations of petitioner conducted by the Bureau of Prisons. At sentencing, the district court did not grant a downward departure and sentenced petitioner at the bottom of the guidelines range to a total of 235 months’ imprisonment as anticipated by the plea agreement. Specifically, the district court imposed a sentence of 151 months on count 1, a concurrent sentence of 120 months on count 3, and a consecutive mandatory minimum sentence of 84 months on count 2. Judgment was entered on June 7, 2004. No timely appeal was filed. Petitioner filed a notice of appeal pro se on June 7, 2005, and that appeal was dismissed as untimely on September 20, 2005.

On August 8, 2005, petitioner filed this § 2255 motion asserting at its core that his attorney rendered ineffective assistance of counsel by failing to file a timely notice of appeal. The government filed a response, which was supported by an affidavit from defense counsel G. Kerry Haymaker attesting to facts concerning his former representation of petitioner in the underlying criminal case. Counsel was appointed to represent petitioner in connection with the § 2255 motion, and an evidentiary hearing was held before the magistrate judge to whom the matter had been referred. The magistrate judge recommended that the § 2255 motion be granted to allow petitioner to file a delayed direct appeal, emphasizing that Haymaker’s testimony did “not exclude the possibility that he was requested to file a notice of appeal.”

Objections were filed by the government, and the district court initially scheduled an evidentiary hearing. On the day of the hearing, however, petitioner was not able to testify and the parties agreed that nothing new would be added if a second evidentiary hearing were held. Conducting a de novo review of the evidence, the district court rejected the magistrate judge’s recommendation after concluding that petitioner’s testimony was not credible and that the only logical inference to be drawn from the evidence was that petitioner, having consulted with his attorney, failed to specifically direct his attorney to file a notice of appeal within the ten-day appeal period. Accordingly, the district court found petitioner had not demonstrated that his counsel’s performance was deficient. The § 2255 motion was denied, a certificate of appealability was granted on this issue, and this appeal followed.

II.

“On appeal from the denial of a § 2255 motion, we review legal conclusions de novo and factual findings for clear error.” Regalado v. United States, 334 F.3d 520, 523-24 (6th Cir.2003) (citing Wright v. United States, 182 F.3d 458, 463 (6th Cir.1999)). We will not find clear error unless we are left with a definite, firm conviction that a mistake has been committed. Id. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

To establish a claim of ineffective assistance of counsel, the petitioner must prove [538]*538that his counsel’s performance was deficient and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland analysis applies to claims that the attorney’s deficient performance led to the forfeiture of a direct appeal. Roe v. Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). Prejudice is shown when there is a reasonable probability that, but for counsel’s deficient performance, petitioner would have timely appealed. Id. at 483-84, 120 S.Ct. 1029; see also Ludwig v. United States, 162 F.3d 456, 459 (6th Cir.1998) (holding failure to file direct appeal when specifically requested establishes prejudice).1

Although rejecting a per se rule that would require an attorney to file an appeal unless specifically told not to, the Court in Roe reaffirmed its prior decisions holding that “a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Roe, 528 U.S. at 477, 120 S.Ct. 1029; see also Regalado, 334 F.3d at 524-25. Absent specific instructions to file an appeal, we ask first “whether the attorney ‘consulted’ with the defendant about the benefits and drawbacks of bringing an appeal.” 334 F.3d at 525. When consultation has occurred, then “[c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to the appeal.” Roe, 528 U.S. at 478, 120 S.Ct. 1029. If counsel has not consulted with the defendant, then the question becomes whether the failure to consult constituted deficient performance. The Court in Roe explained that although failure to consult is not necessarily unreasonable, a “constitutionally imposed duty to consult with the defendant about an appeal [arises] when there is reason to think either (1) that a rational defendant would want to appeal ..., or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Michael Shane McCormick, Sr. v. United States
72 F.4th 130 (Sixth Circuit, 2023)
Timothy Neill, Jr. v. United States
937 F.3d 671 (Sixth Circuit, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
378 F. App'x 536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christopher-shelton-v-united-states-ca6-2010.