Robinson v. United States

71 F. App'x 553
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 7, 2003
DocketNo. 01-2390
StatusPublished
Cited by1 cases

This text of 71 F. App'x 553 (Robinson 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
Robinson v. United States, 71 F. App'x 553 (6th Cir. 2003).

Opinion

SCHWARZER, Senior District Judge.

Carl Anthony Robinson appeals from a judgment of the District Court denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. He contends that his counsel provided ineffective assistance by having failed to file a notice of appeal from his sentence. The district court granted a certificate of appealability on the issue. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2258 and for the reasons stated below we affirm.

FACTUAL BACKGROUND

On April 16,1996, Robinson was indicted by a grand jury on ten counts of drug distribution and firearms violations. On September 20, 1996, Robinson pled guilty to one count of illegal possession of a firearm in violation of 18 U.S.C. § 922(g) and one count of using and carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). A few months after entry of the plea, Robinson’s then-attorney moved to withdraw the plea. On May 15, 1997, Robinson retained a new attorney, Warren Harris. Harris and Robinson decided that it would not be in Robinson’s best interest to go to trial after all. On October 27, 1997, Harris withdrew the motion to withdraw the plea.

On April 24, 1998, Robinson appeared for sentencing. Harris stated to the court, and the government confirmed, that the government was unwilling to make a substantial assistance motion for a departure and that under the plea agreement the sentencing cap was 111 months. The court then imposed a sentence of 111 months. Robinson remained free on bail pending instructions to report to commence service of his sentence.

On July 17, 1998, Robinson filed an initial motion to vacate his sentence pro se, later withdrawn. On November 5, 1998, Robinson filed the instant petition to vacate his sentence, alleging inter alia ineffective assistance of counsel. The district court rejected most of Robinson’s claims without hearing, but referred the ineffective assistance claim to the magistrate [555]*555judge for an evidentiary hearing. Following the hearing, the magistrate judge on February 9, 2001, issued a Report and Recommendation, recommending denial of the petition. The district court adopted the Report and Recommendation. Now represented by new counsel, Robinson timely appeals.

DISCUSSION

Under Strickland v. Washington, 466 U.S. 668, 687, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to succeed on an ineffective assistance of counsel claim, a defendant must show that his counsel’s performance was deficient and that as a result he suffered actual prejudice. Proof that a lawyer has disregarded a defendant’s specific instruction to file a notice of appeal satisfies both the deficient performance and prejudice prongs of Strickland. Roe v. Flores-Ortega, 528 U.S. 470, 477, 485, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (“[W]hen counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim”).

Robinson “contends he was denied the effective assistance of counsel when his attorney did not file a direct appeal for him following his federal sentencing, even though [he] requested his attorney to do so.” Appellant’s Br. at 12. Thus, the issue before the district court was whether Robinson asked or directed Harris to file a notice of appeal. The bulk of the testimony adduced at the February 9, 2001, evidentiary hearing concerned the question whether Robinson had been led to expect a lesser sentence. Because this is not an issue that has been raised on appeal, this evidence is not relevant. The evidence concerning the taking of an appeal is quite brief and, as shown below, it is in conflict.

Harris testified as follows:

Q. Did you discuss filing an appeal with him while, immediately following the sentencing?
A. Mr. Robinson did not ask me to file an appeal.

J.A. 293.

THE COURT: Okay. But are you saying— I think her question was did you discuss immediately after the sentencing anything about the appeal?
A. That I do not recall, Your Honor.
Q. Okay. After the court had advised Mr. Robinson of his appellate rights, do you recall having a conversation with him to further explain his appeal rights.? A. No, I don’t recall a conversation with him.

J.A. 294.

Q. So it’s your testimony that you do not recall Mr. Robinson, you do not recall discussing the appeal issue with Mr. Robinson at all?
A. No.
[Colloquy with the court]
Q. My question is did he discuss — he does not recall discussing an appeal with Mr. Robinson after the sentencing.
A. And my earlier, I believe I made it a very emphatic statement. I said Mr. Robinson did not ask me to file an appeal.

J.A. 297.1

Robinson testified that immediately following the sentencing, he, Harris and Rob[556]*556inson’s common-law wife, Nina Tate, talked about an appeal outside the court room. Harris said he could not win. Under questioning of his counsel Robinson testified as follows:

Q. Okay. So is it your testimony that you brought up the issue of appeal after your sentencing?
A. Right.
Q. And that you asked him to file an appeal for you?
A. I asked him, he said we couldn’t win.
Q. But you specifically asked him and said, I want to appeal?
A. Yes, I did.
Q. Or words to that effect?
A. Yes.
Q. And his response was?
A. You can’t win.

J.A. 357.

Nina Tate also testified about the conversation following the sentencing:

Q. Okay. And at any time after the sentencing that day, did either you or Mr. Robinson say, I want you to file an appeal to Mr. Harris?
A. Mr. Robinson.
Q. Okay.
A. I never said it. Mr. Robinson said, asked as we were conversating [sic] outside.
Q. Okay. Did he specifically say, I want you to file an appeal?
A. Yes. He was unhappy with the sentencing, yes.

J.A. 378.

The magistrate judge’s relevant finding was as follows:

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

Related

Robinson v. United States
540 U.S. 1026 (Supreme Court, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
71 F. App'x 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-united-states-ca6-2003.