22-2026 Thomas v. United States IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________
August Term, 2023 Argued: December 6, 2023 Decided: February 21, 2024
No. 22-2026 ____________________
GREGORY THOMAS,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee. ____________________
Before: JACOBS, SACK and NARDINI, Circuit Judges.
Petitioner-Appellant alleges ineffective assistance of counsel for failure to
file an appeal from his resentencing, and he appeals the denial of his federal
habeas petition pursuant to 28 U.S.C. § 2255 without fact-finding. As we held in
Campusano v. United States, 442 F.3d 770 (2d Cir. 2006), a district court must
engage in a fact inquiry when a habeas petitioner alleges that counsel failed to file a requested notice of appeal. We therefore VACATE the district court’s
order and REMAND the case for further proceedings.
____________________
BERNARD V. KLEINMAN, Law Office of Bernard V. Kleinman, PLLC, Somers, NY, for Petitioner-Appellant.
RAJIT S. DOSANJH (Michael F. Perry, on the brief), Assistant United States Attorneys, for Carla B. Freedman, United States Attorney for the Northern District of New York, Syracuse, NY, for Respondent- Appellee.
PER CURIAM:
Petitioner-Appellant Gregory Thomas alleges that his counsel provided
ineffective assistance by disregarding instructions to file an appeal from
resentencing; Thomas now appeals the denial of his federal habeas petition
pursuant to 28 U.S.C. § 2255. 1 We conclude that the United States District Court
for the Northern District of New York (Scullin, J.) erred in failing to make a fact
inquiry pursuant to Campusano v. United States, 442 F.3d 770 (2d Cir. 2006).
We therefore vacate and remand for further proceedings.
1In citations, “A” refers to the appendix, and “GA” refers to the government appendix.
2 I.
In 2006, Thomas was convicted by a jury on twenty-two counts (including,
among others, murder for hire, drug-trafficking offenses, and mail fraud) and
later sentenced principally to 155 years of imprisonment. After the Supreme
Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019), the district court
vacated two counts of conviction (which are not at issue in this appeal). When
he was re-sentenced in July 2020 to approximately 24 years of imprisonment,
Thomas was represented by a federal public defender. No appeal was filed.
Thomas filed a timely pro se § 2255 petition in August 2021, arguing—as
relevant here—that the public defender provided ineffective assistance of
counsel for disregarding an instruction to file an appeal. The underlying
substantive issue Thomas wanted to appeal was a typographical error on his
verdict sheet; specifically, for Count 10 (a firearm offense under 18 U.S.C.
§ 924(c)(1)), the verdict sheet erroneously described the predicate offense as a
“crime of violence” rather than a “drug trafficking crime.” The § 2255 petition
alleged:
Here, Thomas swears he instructed his most-recent sentencing lawyer to file a notice of appeal on his behalf, and that clearly was not done.
3 GA48 (emphasis added).
The district court denied Thomas’s petition on April 27, 2022, ruling that
Thomas “has not met his burden” under “a preponderance of the evidence”
standard “of showing that his counsel’s conduct fell below an objective standard
of reasonableness.” A57–58 (citation omitted). The district court found
insufficient Thomas’s “swear[ing]” that he told his lawyer to file an appeal,
emphasizing:
[I]t is unclear when and how he made such request, whether there were any discussions about the request, whether he followed up with counsel, whether he was aware of the deadlines to appeal, or if [he] agreed to forgo the appeal.
A58.
On Thomas’s motion for reconsideration, the district court recapitulated its
prior analysis and quoted Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir.
2013), for the proposition that a district court is not required to hold a § 2255
hearing if a petition raises only “vague, conclusory, or palpably incredible”
allegations. GA81–82.
II.
In the § 2255 context, factual findings are reviewed for clear error and
questions of law are reviewed de novo. See Triana v. United States, 205 F.3d 36,
4 40 (2d Cir. 2000). “The question of whether a defendant’s lawyer’s
representation violates the Sixth Amendment right to effective assistance of
counsel is a mixed question of law and fact that is reviewed de novo.” LoCascio
v. United States, 395 F.3d 51, 54 (2d Cir. 2005) (quoting United States v. Blau, 159
F.3d 68, 74 (2d Cir. 1998)). Generally, a defendant alleging ineffective assistance
of counsel must show that the counsel’s performance was (a) “deficient”
according to “an objective standard of reasonableness,” and (b) “prejudicial,”
meaning “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 687-88, 692–94 (1984).
When a district court declines to hold a § 2255 hearing, we review that
decision under the more deferential standard of abuse of discretion. Gonzalez,
722 F.3d at 131. “A court abuses its discretion when it takes an erroneous view
of the law, makes a clearly erroneous assessment of the facts, or renders a
decision that cannot be located within the range of permissible decisions.” Id.
In this case, the district court abused its discretion and committed a legal
error by summarily denying Thomas’s petition without fact-finding. The right
to appeal has long been recognized as sacrosanct, particularly in cases involving
5 “the loss of a chance at an entire appellate proceeding.” Campusano, 442 F.3d at
775. Where counsel is accused of failing to file a notice of appeal, the usual
Strickland analysis turns on the specific interactions between the lawyer and the
defendant:
1. A lawyer who “disregards specific instructions” to file an appeal
provides ineffective assistance. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).
This is true even if the lawyer believes the appeal to be frivolous; in such a case,
the lawyer must nevertheless file the notice of appeal but may submit an Anders
brief seeking the permission of the court of appeals to withdraw. Campusano,
442 F.3d at 771–72 (citing Anders v. California, 386 U.S. 738 (1967)).
2. If the defendant does not ask the lawyer to file an appeal, the question
turns on whether the lawyer has a “duty to consult” the client under the totality
of the circumstances.
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22-2026 Thomas v. United States IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________
August Term, 2023 Argued: December 6, 2023 Decided: February 21, 2024
No. 22-2026 ____________________
GREGORY THOMAS,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee. ____________________
Before: JACOBS, SACK and NARDINI, Circuit Judges.
Petitioner-Appellant alleges ineffective assistance of counsel for failure to
file an appeal from his resentencing, and he appeals the denial of his federal
habeas petition pursuant to 28 U.S.C. § 2255 without fact-finding. As we held in
Campusano v. United States, 442 F.3d 770 (2d Cir. 2006), a district court must
engage in a fact inquiry when a habeas petitioner alleges that counsel failed to file a requested notice of appeal. We therefore VACATE the district court’s
order and REMAND the case for further proceedings.
____________________
BERNARD V. KLEINMAN, Law Office of Bernard V. Kleinman, PLLC, Somers, NY, for Petitioner-Appellant.
RAJIT S. DOSANJH (Michael F. Perry, on the brief), Assistant United States Attorneys, for Carla B. Freedman, United States Attorney for the Northern District of New York, Syracuse, NY, for Respondent- Appellee.
PER CURIAM:
Petitioner-Appellant Gregory Thomas alleges that his counsel provided
ineffective assistance by disregarding instructions to file an appeal from
resentencing; Thomas now appeals the denial of his federal habeas petition
pursuant to 28 U.S.C. § 2255. 1 We conclude that the United States District Court
for the Northern District of New York (Scullin, J.) erred in failing to make a fact
inquiry pursuant to Campusano v. United States, 442 F.3d 770 (2d Cir. 2006).
We therefore vacate and remand for further proceedings.
1In citations, “A” refers to the appendix, and “GA” refers to the government appendix.
2 I.
In 2006, Thomas was convicted by a jury on twenty-two counts (including,
among others, murder for hire, drug-trafficking offenses, and mail fraud) and
later sentenced principally to 155 years of imprisonment. After the Supreme
Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019), the district court
vacated two counts of conviction (which are not at issue in this appeal). When
he was re-sentenced in July 2020 to approximately 24 years of imprisonment,
Thomas was represented by a federal public defender. No appeal was filed.
Thomas filed a timely pro se § 2255 petition in August 2021, arguing—as
relevant here—that the public defender provided ineffective assistance of
counsel for disregarding an instruction to file an appeal. The underlying
substantive issue Thomas wanted to appeal was a typographical error on his
verdict sheet; specifically, for Count 10 (a firearm offense under 18 U.S.C.
§ 924(c)(1)), the verdict sheet erroneously described the predicate offense as a
“crime of violence” rather than a “drug trafficking crime.” The § 2255 petition
alleged:
Here, Thomas swears he instructed his most-recent sentencing lawyer to file a notice of appeal on his behalf, and that clearly was not done.
3 GA48 (emphasis added).
The district court denied Thomas’s petition on April 27, 2022, ruling that
Thomas “has not met his burden” under “a preponderance of the evidence”
standard “of showing that his counsel’s conduct fell below an objective standard
of reasonableness.” A57–58 (citation omitted). The district court found
insufficient Thomas’s “swear[ing]” that he told his lawyer to file an appeal,
emphasizing:
[I]t is unclear when and how he made such request, whether there were any discussions about the request, whether he followed up with counsel, whether he was aware of the deadlines to appeal, or if [he] agreed to forgo the appeal.
A58.
On Thomas’s motion for reconsideration, the district court recapitulated its
prior analysis and quoted Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir.
2013), for the proposition that a district court is not required to hold a § 2255
hearing if a petition raises only “vague, conclusory, or palpably incredible”
allegations. GA81–82.
II.
In the § 2255 context, factual findings are reviewed for clear error and
questions of law are reviewed de novo. See Triana v. United States, 205 F.3d 36,
4 40 (2d Cir. 2000). “The question of whether a defendant’s lawyer’s
representation violates the Sixth Amendment right to effective assistance of
counsel is a mixed question of law and fact that is reviewed de novo.” LoCascio
v. United States, 395 F.3d 51, 54 (2d Cir. 2005) (quoting United States v. Blau, 159
F.3d 68, 74 (2d Cir. 1998)). Generally, a defendant alleging ineffective assistance
of counsel must show that the counsel’s performance was (a) “deficient”
according to “an objective standard of reasonableness,” and (b) “prejudicial,”
meaning “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 687-88, 692–94 (1984).
When a district court declines to hold a § 2255 hearing, we review that
decision under the more deferential standard of abuse of discretion. Gonzalez,
722 F.3d at 131. “A court abuses its discretion when it takes an erroneous view
of the law, makes a clearly erroneous assessment of the facts, or renders a
decision that cannot be located within the range of permissible decisions.” Id.
In this case, the district court abused its discretion and committed a legal
error by summarily denying Thomas’s petition without fact-finding. The right
to appeal has long been recognized as sacrosanct, particularly in cases involving
5 “the loss of a chance at an entire appellate proceeding.” Campusano, 442 F.3d at
775. Where counsel is accused of failing to file a notice of appeal, the usual
Strickland analysis turns on the specific interactions between the lawyer and the
defendant:
1. A lawyer who “disregards specific instructions” to file an appeal
provides ineffective assistance. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).
This is true even if the lawyer believes the appeal to be frivolous; in such a case,
the lawyer must nevertheless file the notice of appeal but may submit an Anders
brief seeking the permission of the court of appeals to withdraw. Campusano,
442 F.3d at 771–72 (citing Anders v. California, 386 U.S. 738 (1967)).
2. If the defendant does not ask the lawyer to file an appeal, the question
turns on whether the lawyer has a “duty to consult” the client under the totality
of the circumstances. Flores-Ortega, 528 U.S. at 478–80 (identifying various
factors relevant to this analysis, such as “whether the defendant received the
sentence bargained for as part of the plea” or “whether the plea expressly
reserved or waived some or all appeal rights”). Not every case requires
affirmative consultation—for example, if “a sentencing court’s instructions to a
6 defendant about his appeal rights in a particular case are so clear and
informative as to substitute for counsel’s duty to consult.” Id. at 479–80.
3. If the lawyer mistakenly advises the defendant that there is no right to
appeal, then the defendant is presumed to have shown deficiency and prejudice
under Strickland. Garcia v. United States, 278 F.3d 134, 137–38 (2d Cir. 2002).
The burden then shifts to the government to “show by clear and convincing
evidence that the defendant actually appealed or had independent knowledge of
his right to appeal and elected not to do so.” Id. at 138.
* * *
Here, Thomas “swears” that he instructed his lawyer to file an appeal and
that his lawyer specifically disregarded this instruction. GA48. Although
“vague, conclusory, or palpably incredible” allegations of attorney error will
ordinarily not entitle a § 2255 petitioner to an evidentiary hearing, Gonzalez, 722
F.3d at 130, we have explicitly required such a hearing “[w]hen a defendant
claims that his attorney failed to file a requested notice of appeal.” Campusano,
442 F.3d at 776 (emphasis added). Thomas’s failure to specify “when and how
he made such request,” A58, is therefore no basis for denying the petition
without fact-finding. That uncertainty is the very reason for a fact inquiry: so
7 that the district court may determine “whether the client requested the appeal,”
notwithstanding the allegation. Campusano, 442 F.3d at 776.
A Campusano inquiry does not need to be burdensome, and a “district
court has discretion to determine if a testimonial hearing will be conducted.”
Id. (citing Chang v. United States, 250 F.3d 79, 85–86 (2d Cir. 2001)). In many
cases, the district court may discharge this obligation by accepting affidavits
from the defendant’s prior counsel, including those filed as part of the
government’s opposition papers. See, e.g., Dolney v. United States, No. 07-cv-
4040, 2011 WL 73076, at *4 (E.D.N.Y. Jan. 10, 2011) (Garaufis, J.) (dismissing the
§ 2255 petition when the government opposition filing included an affidavit from
the petitioner’s attorney, stating that “[a]t no time did [the petitioner] request
that I file a notice of appeal”).
For the foregoing reasons, we VACATE the order of the district court and
REMAND for further proceedings consistent with this opinion.