Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit
2-3-2009
Irvine Hodge, Jr. v. USA Precedential or Non-Precedential: Precedential
Docket No. 08-1918
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation "Irvine Hodge, Jr. v. USA" (2009). 2009 Decisions. Paper 1811. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1811
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No.08-1918 _____________
IRVINE HODGE, JR.,
Appellant
v.
UNITED STATES OF AMERICA _____________
On Appeal from the District Court of the Virgin Islands (D.C. No. 04-cv-00044) District Judge: Raymond L. Finch _______________
Argued December 8, 2008
Before: FISHER, JORDAN and STAPLETON, Circuit Judges,
(Filed: February 3, 2009) _______________ David R. Fine [ARGUED] K&L Gates 17 North Second Street 18 th Floor, Market Square Plaza Harrisburg, PA 17101 Counsel for Appellant
Nelson L. Jones [ARGUED] Office of the United States Attorney 5500 Veterans Building, #260 Charlotte Amalie, St. Thomas USVI 00802-6924 Counsel for Appellee _______________
OPINION OF THE COURT _______________
JORDAN, Circuit Judge.
Pursuant to identical plea agreements, Irvine Hodge, Jr.
and his brother Devin 1 were sentenced at the same proceeding
to life imprisonment for the murder of a jewelry store owner on
St. Thomas in the U.S. Virgin Islands. Devin’s counsel timely
1 Throughout the remainder of this opinion, we refer to Irvine Hodge, Jr. as “Hodge” and to Devin Hodge as “Devin.”
2 appealed his client’s sentence. Hodge’s counsel, however, filed
a litany of motions but never a notice of appeal. In an earlier
decision, we vacated Devin’s sentence because the government
had breached its plea agreement by implicitly requesting a life
sentence. United States v. Hodge, 412 F.3d 479 (3d Cir. 2005).
In the meantime, having lost the opportunity to directly appeal,
Hodge moved for collateral relief under 28 U.S.C. § 2255 and
argued, as his brother had, that the government had breached its
plea agreement with him. The District Court denied Hodge’s
motion. For the reasons that follow, we will reverse the District
Court’s denial of Hodge’s 2255 motion, vacate his sentence, and
remand with instructions for the District Court to reenter the
sentence so that Hodge has a second opportunity to file a direct
appeal.
3 I. Background
In 1998, Hodge and his brother robbed a jewelry store
and killed the store’s owner. They were charged with first
degree murder, in violation of 18 U.S.C. § 924(j)(1); interfering
with commerce, in violation of 18 U.S.C. § 1951; and tampering
with a witness by killing, in violation of 18 U.S.C. § 1512(a).
Hodge entered into a plea agreement with the
government in April 2000. In exchange for his guilty plea to a
charge of first degree murder and his promise to make
restitution for the robbery, Hodge obtained from the government
a promise to seek dismissal of the remaining charges, to
recommend that the sentencing judge give him credit for
accepting responsibility for the crime, and “to make no specific
sentencing recommendation other than to request that the
sentence be within the guideline range.” (App. at 47-50.) As
part of a “package deal,” Devin signed an identical plea
4 agreement. See Hodge, 412 F.3d at 480, 482. On May 2, 2000,
the District Court of the Virgin Islands conducted a joint
change-of-plea hearing for Hodge and Devin, at which the
brothers were represented by separate counsel.2
The following month, Hodge and the government entered
into a supplemental plea agreement. Under its terms, Hodge
“agree[d] to provide truthful, complete, and accurate
information and testimony” and to cooperate fully with an
ongoing government investigation. (App. at 107-11.) The
government, in turn, promised to “[m]ake the nature and extent
of [Hodge’s] cooperation known to the Court” and to “[m]ake
a motion to allow the Court to depart from the Sentencing
Guidelines,” provided that Hodge had fulfilled the conditions of
the deal. (App. at 111.) The government retained sole
2 Hodge was represented by the same attorney at all times relevant to this appeal.
5 discretion to decide whether and to what degree Hodge had
cooperated.
The District Court sentenced Hodge and Devin at a single
proceeding on March 6, 2002. In response to Hodge’s
allocution, in which he expressed remorse for his crime, the
prosecutor remarked:
[I]t always amazes me that once a person gets convicted and spends some time in jail, pending sentencing, two things happen. They usually find religion, and they usually find great remorse. ... Whether the remorse is genuine or not, I leave for a higher power to determine. But at some point this defendant has to realize that there are grave consequences for your actions.
(App. at 156.) He then “ask[ed] the Court to fashion a sentence
as fair and as just, and that sends a clear message: You may go
out with the intention of [] committing a robbery, but if someone
dies while you’re committing that robbery, there are grave
consequences to your actions.” (App. at 157.) After Devin
6 allocuted, the prosecutor made similar statements.3 The record
does not indicate that the government made any mention to the
Court of Hodge’s cooperation, and the government did not file
guidelines. Hodge and Devin each were sentenced to life
imprisonment.
After announcing the sentences, the District Court
instructed Hodge and Devin that they had ten days in which to
file their notices of appeal. Devin timely filed his notice of
appeal, and, as earlier noted, we vacated his sentence, holding
that the government had breached the plea agreement by
3 For example: “But the point is, Your Honor, that someone that evil, to have complete transformation in a four-year period, it begs the question, is it genuine or isn’t it? ... We ask the Court to fashion a sentence that is fair, that is just ... . Because Devin Hodge had his chance to be a positive influence in the community. Larry Davis [the deceased jewelry store owner] was a positive influence in this community. He doesn’t get a second chance.” (App. at 173-74.)
7 implicitly requesting a sentence of life imprisonment. Hodge,
412 F.3d at 487. On remand, the District Court resentenced
Devin to a term of 450 months.
Unlike his brother, Hodge did not file a direct appeal.
Instead, on March 11, 2002, his counsel filed a motion to correct
Hodge’s sentence pursuant to Fed. R. Crim. P. 35. That same
day, the Court entered an amended judgment of sentence to
correct certain clerical errors.4 On April 2, 2002, Hodge’s
counsel then filed what was styled as a “Motion to Have
Conceded the Motion to Correct Sentence” and, eight months
later, something he called an “Information Motion.” In the
Information Motion, Hodge’s counsel noted:
That I am advised by Defendant that he recently sought, pro se, to have the Court appoint counsel
4 The record does not indicate what errors, in particular, the District Court corrected.
8 for his appeal. However, Defendant was advised that no notice of appeal was filed.
Undersigned counsel is of the opinion that the post[-]trial motion[s] filed by Defendant on March 11, 2002 and April 2, 2002 are appropriate for an Order of the District Court before Defendant’s timeliness for filing an appeal, if necessary, can be ascertained. Otherwise the Defendant is held in the procedural [l]imbo [in which] he now finds himself.
(App. at 193.)
On March 3, 2003, Hodge wrote to his attorney,
expressing confusion as to why an appeal had never been filed
in his case and asking counsel to “[d]o whatever needs to be
done so that I can have a chance to ‘appeal’ the life ... sentence
I received on March 6, 2002.” (App. at 195.) Attached to the
letter was a notice that Hodge had received from this Court
telling him that we could not consider a motion to file his appeal
out of time because the District Court had to address such a
motion in the first instance.
9 Hodge proceeded pro se to request the District Court to
allow him to file a notice of appeal out of time, but the Court
denied that request on December 31, 2003. On January 7, 2004,
the District Court denied the “Motion to Have Conceded the
Motion to Correct Sentence.” The Court contemporaneously
directed Hodge to notify it by February 16 whether he wanted to
have his earlier motion to correct his sentence recharacterized as
a motion for collateral relief under 28 U.S.C. § 2255.
On January 30, 2004, Hodge’s counsel filed a document
entitled “Post-Trial Motion for Correction of Error and
Reconsideration,” in which he wrote that, should the Court
decline to reconsider its December 31, 2003 Order, Hodge
wished to have the motion to correct his sentence
recharacterized as a 2255 motion. Although the record is
unclear, it seems that the Court must have denied the motion for
reconsideration.
10 On March 1, Hodge’s counsel timely filed a document in
support of Hodge’s 2255 motion, using a standardized form
provided by the Court.5 In it, he argued, first, that the
government had breached its plea agreement with Hodge by not
advising the Court of the substantial assistance that Hodge had
provided; and, second, that Hodge “was not advised that his
right to appeal would terminate on April 24, 2002. That
knowledge did not come until the District Court made its
decision of December 31, 2003.” (App. at 44.)
On August 16, 2005, Hodge, acting pro se, filed a
“Motion to Submit Memorandum of Law in Support of § 2255
Petition” (the “Supplemental Memorandum”), in which he
provided argument in support of his claims that the government
5 Hodge claims, and the government does not dispute, that the District Court told him that he would have thirty days to supplement his claims, after providing notice that he chose recharacterization.
11 had breached the plea agreement and that he was denied the
right to appeal. Besides arguing that the government had failed
to advise the Court of his cooperation, Hodge claimed, in
keeping with our then-recently issued opinion in his brother’s
appeal, that the government had also breached its agreement by
tacitly recommending that he receive a life sentence. Most
importantly for this appeal, Hodge also argued that, “as a result
of trial counsel’s erroneous advice and deficient performance [,
movant] was denied his due process right to a direct appeal.”
(App. at 210.) Specifically, he claimed:
[T]rial counsel promised ... he would file a prompt notice of appeal. However, contrary to his promise[,] trial counsel instead filed a Rule 35 Motion to Correct Sentence ... . Counsel went on to inform [movant] that he did not have to worry about the time period in which to file his appeal because the clock would not begin to tick until the Court responded to the Motion to Correct Sentence.
(App. at 210.)
12 The Court denied Hodge’s 2255 motion on September
19, 2007. Treating the Supplemental Memorandum as an
attempt to amend that motion, the Court concluded that Hodge
was trying to raise an ineffective assistance claim that was “new
and distinct” from the right-to-appeal claim raised in the 2255
motion. Thus, the Court held, the ineffective assistance claim
was untimely. It further held that all of the claims in the 2255
motion were procedurally defaulted because Hodge had not
raised them on direct appeal and he could not establish actual
innocence or cause for the default and consequent prejudice.
Hodge timely appealed the District Court’s decision. On
May 30, 2008, we issued a certificate of appealability on two
issues: (1) whether the District Court erred in not allowing the
ineffective assistance and breach-of-plea-agreement claims that
Hodge raised in his Supplemental Memorandum to relate back
to his timely 2255 motion, and (2) whether the assistance of
13 Hodge’s counsel was ineffective and, thus, constituted cause for
his procedural default. We now hold that the District Court
erred in not allowing Hodge’s ineffective assistance claim to
relate back to the original 2255 motion and that his counsel’s
failure to initiate the appeals process sunk to a level of
ineffective assistance excusing Hodge’s procedural default.
Because we remand the case for the reentry of Hodge’s initial
sentence so that he can file a direct appeal, we need not reach
the question of whether his claims about breaches of his plea
agreement relate back to his 2255 motion.
II. Jurisdiction and Standard of Review
The District Court of the Virgin Islands exercised
jurisdiction over this matter under 28 U.S.C. § 2255 and 48
U.S.C. § 1612. Our jurisdiction arises under 28 U.S.C. § 1291.6
6 We granted a certificate of appealability on the aforementioned issues pursuant to 28 U.S.C. § 2253(c), after
14 We review the District Court’s interpretation of the relation back
doctrine de novo. See United Auto. Workers Local 259 Social
Sec. Dept. v. Metro Auto. Ctr., 501 F.3d 283, 286 (3d Cir. 2007)
(conducting plenary review of district court’s interpretation of
procedural rules); Hartmann v. Carroll, 492 F.3d 478, 480 (3d
Cir. 2007) (“Our review of the timeliness of a federal habeas
application is plenary.”). We also undertake plenary review of
a district court’s conclusions as to procedural default. Fahy v.
Horn, 516 F.3d 169, 179 (3d Cir. 2008).
applying the standard set forth in Slack v. McDaniel, 529 U.S. 473, 484 (2000) (“When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.”).
15 III. Discussion
A. Relation Back
Hodge concedes that he did not file his Supplemental
Memorandum within the one-year statute of limitations for
habeas petitions prescribed by 28 U.S.C. § 2255(f). He argues,
however, that the District Court should have allowed the claims
he made therein, including the ineffective assistance claim, to
relate back to his timely filed 2255 motion. We agree. In
concluding otherwise, the District Court applied an incorrect
legal standard.
Under Federal Rule of Civil Procedure 15(c)(1)(B), a
party may properly raise a new claim or defense that would have
been barred by the statute of limitations if the claim or defense
“arose out of the conduct, transaction, or occurrence set out – or
attempted to be set out – in the original pleading.” In United
States v. Thomas, 221 F.3d 430 (3d Cir. 2000), we held that the
16 relation back rule applies to 2255 motions “insofar as a District
Court may, in its discretion, permit an amendment ... to provide
factual clarification or amplification ... as long as the [motion]
itself was timely filed and the [movant] does not seek to add an
entirely new claim or theory of relief.” Id. at 436. Because
Thomas sought only to amplify his existing claims with factual
support, we expressly left open “whether a new claim would be
proscribed if that claim ‘arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original
pleading.’” Id. at 436 n.4 (quoting Fed. R. Civ. P. 15(c)(1)(B))
(emphasis added). However, we did note that at least two
circuits permitted such new claims to relate back. Id. (citing
United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000);
United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999)).
The number of circuits permitting relation back under those
17 circumstances increased over the ensuing years,7 and, in 2005,
the Supreme Court in Mayle v. Felix, 545 U.S. 644 (2005),
resolved competing definitions of “conduct, transaction, or
occurrence” in the habeas context, holding that “[s]o long as the
original and amended petitions state claims that are tied to a
common core of operative facts, relation back will be in order.”
Id. at 664.
The District Court seems to have overlooked Mayle in
considering Hodge’s Supplemental Memorandum. Giving no
mention to that Supreme Court decision, it held that the
ineffective assistance claim in the Supplemental Memorandum
was not a “factual clarification or amplification” of the right-to-
appeal claim set out in the 2255 motion, but was rather a new
7 E.g., United States v. Hicks, 283 F.3d 380 (D.C. Cir. 2002); United States v. Espinoza-Saenz, 235 F.3d 501 (10th Cir. 2000); Davenport v. United States, 217 F.3d 1341 (11th Cir. 2000).
18 and distinct claim that did not relate back under the Thomas
interpretation of Fed. R. Civ. P. 15. (App. at 7-8.) The District
Court thus applied the wrong standard. After Mayle, it is
apparent that new claims can relate back if they arise from the
same conduct, transaction, or occurrence described in a timely
filed 2255 motion. Therefore, the Court should have asked – as
we ask now – whether both the ineffective assistance claim in
Hodge’s Supplemental Memorandum and the right-to-appeal
claim in his original 2255 motion “are tied to a common core of
operative facts.” Mayle, 545 U.S. at 664.
The answer to that question is clearly “yes.”
Understandably using the passive voice, Hodge’s counsel
acknowledged that his client had not been “advised that his right
to appeal would terminate on April 24, 2003. That knowledge
did not come until the District Court made its decision of
December 31, 2003.” (App. at 44.) In his Supplemental
19 Memorandum, Hodge more pointedly explained that his counsel
was the one who had erroneously advised him that the filing of
a motion to correct his sentence would toll the time for filing an
appeal. It is true, as the government notes, that Mayle forecloses
the relation back of a new, untimely claim when it is “supported
by facts that differ in both time and type from those the original
pleading set forth.” 545 U.S. at 650. But the facts undergirding
Hodge’s ineffective assistance claim differ in neither type nor
time from those supporting his right-to-appeal claim: both
concern the erroneous advice that Hodge’s counsel provided
about the filing deadline for the appeal.8
8 For this reason, it can be argued that Hodge raised an ineffective assistance claim in his original 2255 motion. The allegedly ineffective attorney who authored that motion essentially admitted that his own representation was the reason that Hodge did not file a timely appeal. The language he used comes as close to a mea culpa as one could realistically expect.
20 Having determined that Hodge’s ineffective assistance
claim relates back to his timely filed 2255 motion, we next
address whether his counsel’s performance constituted cause for
the procedural default of his claims concerning the
government’s alleged breaches of the plea agreement.
B. Procedural Default
Because collateral review under § 2255 is not a substitute
for direct review, a movant ordinarily may only raise claims in
a 2255 motion that he raised on direct review. Bousley v. United
States, 523 U.S. 614, 621 (1998). Put differently, a movant has
procedurally defaulted all claims that he neglected to raise on
direct appeal. Id. But courts will exempt a movant from that
rule if he can prove either that he is actually innocent of the
crime for which he was convicted, or that there is a valid cause
for the default, as well as prejudice resulting from the default.
Id. at 622. On appeal, Hodge argues, as he did below, that his
21 counsel’s ineffective assistance – in the form of neglecting to
file a direct appeal of his sentence – satisfies the cause and
prejudice exception to procedural default. We agree.9
1. Cause
Ineffective assistance of counsel that rises to the level of
a Sixth Amendment violation constitutes cause for a procedural
default. McCleskey v. Zant, 499 U.S. 467, 494 (1991); Wise v.
Fulcomer, 958 F.2d 30, 34 n.9 (3d Cir. 1992). The question
before us, then, is whether it was constitutionally ineffective for
Hodge’s counsel not to file an appeal of Hodge’s life sentence.
In Strickland v. Washington, 466 U.S. 668 (1984), the
9 We recognize that the District Court never addressed the merits of Hodge’s ineffective assistance claim, holding instead that it did not relate back to his original 2255 motion. However, “[b]ecause the record has been sufficiently developed for us to resolve this legal issue, we need not remand to the District Court to consider it in the first instance.” In re Ben Franklin Hotel Assocs., 186 F.3d 301, 306 (3d Cir. 1999).
22 Supreme Court held that every criminal defendant has a Sixth
Amendment right to “reasonably effective [legal] assistance.”
Id. at 687. Pursuant to Strickland’s now-familiar test, an
attorney renders ineffective assistance when his performance
“f[alls] below an objective standard of reasonableness,” given
the particular circumstances of the case at hand. Id. at 688. In
Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Court applied
Strickland to an attorney’s failure to file a notice of appeal. At
the outset of its analysis, the Court recognized that a lawyer who
disregards his client’s explicit instructions to appeal renders
ineffective assistance. Id. at 477. However, it rejected, as
inconsistent with Strickland, the Ninth Circuit’s rule that it was
per se unreasonable for an attorney not to file a notice of appeal
on behalf of a client unless the client had told the attorney not to
appeal. Id. at 478. Instead, under Flores-Ortega, reviewing
courts must conduct a “circumstance-specific reasonableness
23 inquiry” regarding counsel’s failure to file a notice of appeal,
whenever the client did not express a desire to appeal. Id.
That inquiry begins with the issue of attorney-client
consultation. Id. “If counsel has consulted with the defendant
[about his right to appeal], the question of deficient performance
is easily answered: Counsel performs in a professionally
unreasonable manner only by failing to follow the defendant’s
express instructions with respect to an appeal.” Id. But if
counsel has not consulted with the defendant and has not filed
a notice of appeal, he has performed below the constitutional
threshold “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. at 480.
Of course, an attorney may not speak cursorily with a
client about an appeal and call it a “consultation.” Indeed, the
24 Flores-Ortega opinion defines “consulting” as “advising the
defendant about the advantages and disadvantages of taking an
appeal, and making a reasonable effort to discover the
defendant’s wishes.” Id. at 478. It is, moreover, clear from
Strickland that the advice an attorney dispenses during
consultation must meet an “objective standard of
reasonableness.”
In the case at hand, Hodge contends that he told his
counsel to file an appeal, and his counsel failed to do so.
According to the government, however, the record contains
insufficient evidence to establish what, if anything, Hodge told
his counsel regarding an appeal before the filing period expired.
We need not resolve who has the better of this debate.10 Nobody
10 If we did think it necessary to answer that question, we would ask the District Court to do so in the first instance. However, we note that the record is replete with evidence corroborating Hodge’s claim that he told his counsel to appeal
25 contends that Hodge told his lawyer that he did not want to
appeal. Thus, on this record, the question boils down to whether
Hodge expressly said that he wanted to appeal, whether he gave
his lawyer vague instructions, or whether he said nothing at all.
The government does not contend – and it seems implausible –
that he would say nothing, so we are left with the first and
second alternatives. If counsel failed to follow Hodge’s
but that his instruction was ignored, as counsel chose instead to file several motions. In the letter that Hodge sent to his lawyer in March 2003, Hodge expressed confusion as to the state of his appeal. In no uncertain terms, he asked counsel to “[d]o whatever needs to be done so that I can have a chance to ‘appeal’ the ... sentence I received ... while under the counsel of you and your associates.” (App. at 195.) Furthermore, the papers that counsel filed pursuant to the Rule 35 Motion betray his misunderstanding that the period for direct appeal could be tolled by motions practice. Most glaringly, the “Information Motion” suggests that the Rule 35 motion is “appropriate for an Order of the District Court before Defendant’s timeliness for filing an appeal, if necessary, can be ascertained. Otherwise the Defendant is held in the procedural [l]imbo [in which] he now finds himself.” (App. at 193.)
26 instructions, his assistance was clearly ineffective under Flores-
Ortega. If, on the other hand, counsel was unsure about
Hodge’s wishes, the consultation and subsequent service he
provided was still deficient under Flores-Ortega, as well as in
violation of Strickland’s reasonableness standard, because any
doubt under these circumstances should have been resolved in
favor of appeal. Given the force of Hodge’s argument that the
government failed to abide by the terms of its plea agreement,
we think it beyond cavil that any rational defendant in his
position would want to appeal. Counsel himself recognized that
and failed to file an appeal only because he mistakenly believed
his motions practice had put off the pertinent deadline. In short,
competent counsel would have timely appealed.
We are mindful that “the distorting effects of hindsight”
necessitate a highly deferential review of counsel’s
performance. Strickland, 466 U.S. at 689. And we agree that
27 “[t]here are countless ways to provide effective assistance in any
given case.” Id. However, we cannot envision a scenario, aside
from following a client’s thoroughly informed and perfectly
explicit direction, where it would be reasonable for an attorney
not to appeal the life sentence of a client with a nonfrivolous
argument11 as to why the sentence is unlawful.
2. Prejudice
We turn next to the question of prejudice. To establish
prejudice, “a defendant must demonstrate that there is a
reasonable probability that, but for counsel’s [ineffective
assistance], he would have timely appealed.” Flores-Ortega,
11 The plausibility of one of Hodge’s arguments for vacatur of his sentence is demonstrated by the fact that Devin, who received an identical plea agreement in a joint plea arrangement, and then, at a joint sentencing hearing, received an identical sentence, successfully argued that the government had breached the plea agreement by implicitly requesting a life sentence. Hodge, 412 F.3d at 487.
28 528 U.S. at 484. In making that determination, the reviewing
court considers the totality of the circumstances surrounding the
representation. “Nonetheless, evidence that there were
nonfrivolous grounds for appeal ... will often be highly
relevant.” Id. at 485.
As indicated above, we think the prejudice here is
manifest. Hodge had nonfrivolous arguments that the
government had breached its plea agreement with him. Given
the parallels between his case and Devin’s, we agree that “[i]t is
difficult to imagine that one brother would take an appeal and
the other would not.” (Hodge Reply Br. at 12.) Hodge’s
prejudice claim finds additional support in the fruitless motions
practice conducted by his lawyer. Those motions were aimed at
having his sentence “corrected,” which implies that there was
some belief by his counsel that there had been an error.
Furthermore, Hodge’s March 2003 letter to counsel indicates
29 that Hodge had been under the impression that his appeal was in
process. When he discovered it was not, he asked his attorney
to “[d]o whatever needs to be done so that I can have a chance
to ‘appeal’ the life ... sentence I received on March 6, 2002.”
(App. at 195.) Thereafter, without the assistance of counsel, he
asked the District Court to allow him to file a notice of appeal
out of time. All things considered, we find it reasonably
probable, if not obvious, that Hodge would have appealed his
sentence if he had enjoyed effective representation.
The government seems to argue that, even if his
counsel’s assistance was constitutionally ineffective, it did not
prejudice Hodge because the District Court told him at
sentencing that “if he did not file a notice of appeal with or
without counsel, he would lose that right.” (Gov’t Brief at 15
(emphasis added).) This contention conflates the sentencing
court’s obligation, under Fed. R. Crim. P. 32(j), to inform the
30 defendant of his right to appeal and an attorney’s responsibility,
under the Sixth Amendment, to provide effective assistance in
the initiation of his client’s appeal. By that untenable logic, the
government would absolve defense counsel of a constitutionally
imposed duty merely because the District Court paraphrased a
rule of criminal procedure. Needless to say, the responsibilities
of counsel are not so lightly cast aside. Hodge was prejudiced
by his counsel’s failure to initiate the appeals process, regardless
of the District Court’s sentencing colloquy.
IV. Remedy
We have determined that Hodge’s ineffective assistance
claim relates back to his timely filed 2255 motion, that his
counsel’s deficient performance constituted cause for his failure
to file a direct appeal, and that he was prejudiced by that failure.
Now we must prescribe an appropriate remedy.
31 In United States v. Shedrick, 493 F.3d 292 (3d Cir. 2007),
a defendant who had pled guilty to being a felon in possession
of a firearm appealed the district court’s denial of his 2255
motion. As does Hodge, Shedrick argued that his counsel had
been ineffective in failing to file a direct appeal, which, in his
case, involved a sentencing enhancement that the Court had
applied under the United States Sentencing Guidelines. Id. at
300-01. After holding that counsel’s assistance was ineffective
under Flores-Ortega because Shedrick had clearly indicated that
he wanted to appeal the enhancement, we decided to remand the
case and instruct the district court to re-enter Shedrick’s initial
sentence. Id. at 302-03. Such a disposition “put Shedrick in the
same position he would have been in if he had had effective
assistance of counsel.” Id. at 303.
Today, we grant Hodge the same remedy. We will vacate
his sentence and remand the case for the re-entry of that
32 sentence so that he has the opportunity to file a direct appeal.12
V. Conclusion
For the foregoing reasons, the District Court erred in
declining to permit Hodge’s ineffective assistance claim to
relate back to his original 2255 motion, and Hodge has
demonstrated that his counsel was ineffective in failing to file a
direct appeal. Therefore, we will reverse the District Court’s
denial of Hodge’s 2255 motion, vacate his sentence, and remand
the case for re-entry of that sentence, so that Hodge has a second
chance to seek direct review.13
12 It might reasonably be asked whether directing re-entry of Hodge’s original sentence makes sense, since we have already found reversible error in his brother’s closely related case. 412 F.3d 479. We cannot assume, however, that the cases are identical, and thus we think it best to reset the clock for Hodge’s appeal, so that his case can be dealt with on its own merits. 13 The Court acknowledges with appreciation the excellent pro bono service rendered by counsel for Hodge on this appeal.