UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6807
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LONNIE EDWARD MALONE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:08-cv-80114-JPJ-MFU; 1:07-cr-00037-JPJ-MFU-1)
Submitted: July 29, 2011 Decided: August 16, 2011
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Reversed by unpublished per curiam opinion.
Lonnie Edward Malone, Appellant Pro Se. Jennifer R. Bockhorst,
Zachary T. Lee, Steven Randall Ramseyer, Assistant United States
Attorneys, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lonnie Edward Malone appeals from the denial of his 28
U.S.C.A. § 2255 (West Supp. 2011) motion. We previously granted
a certificate of appealability (“COA”) on the issue of whether
Malone received ineffective assistance of counsel when his
attorney allegedly failed to properly consult with him regarding
an appeal. We now reverse the district court’s ruling.
After his sentencing, Malone expressed an interest in
appealing, but his attorney never spoke with him personally
about an appeal. Instead, the attorney spoke with Malone’s son
and daughter-in-law and wrote Malone a letter that was not
received until after the appeal period had expired. In a
meeting with Malone’s son and in his letter, the attorney stated
he would not file a notice of appeal and that Malone would
likely receive a longer sentence if he appealed.
In reviewing the denial of a § 2255 motion, we review
the district court’s legal conclusions de novo and its factual
findings for clear error. Mixed questions of law and fact, such
as the issue of whether a lawyer’s performance was
constitutionally adequate, are reviewed de novo. United
States v. Roane, 378 F.3d 382, 395 (4th Cir. 2004).
In order to succeed on a claim of ineffective
assistance of counsel, a defendant must show: (1) that his
counsel’s performance fell below an objective standard of
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reasonableness; and (2) that counsel’s deficient performance was
prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984). In United States v. Peak, 992 F.2d 39, 41
(4th Cir. 1993), we held that the Sixth Amendment obligates
counsel to file an appeal when his client requests him to do so.
Failure to note an appeal upon timely request constitutes
ineffective assistance of counsel, regardless of the likelihood
of success on the merits. Id. at 42. A waiver of appellate
rights in a plea agreement does not absolve counsel of this
duty. United States v. Poindexter, 492 F.3d 263, 271-73
(4th Cir. 2007). Moreover, even if the defendant fails to
clearly instruct counsel to note an appeal, counsel must still
consult with the defendant about an appeal under certain
circumstances. Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000).
Specifically, counsel is required to consult with a
defendant “when there is reason to think either (1) that a
rational defendant would want to appeal (for example, because
there are nonfrivolous grounds for appeal), or (2) that this
particular defendant reasonably demonstrated to counsel that he
was interested in appealing.” Id. at 480. Consulting entails
“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; see also In re Sealed
Case, 527 F.3d 174, 175-76 (D.C. Cir. 2008) (noting that, after
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attorney advised client regarding advantages and disadvantages
of appealing, attorney must actively attempt to “discover the
defendant’s wishes” within the appeal period).
In addition to showing that counsel’s performance in
failing to consult was deficient, the prisoner must also
establish he was prejudiced by this failure. Flores-Ortega, 528
U.S. at 484. To demonstrate prejudice, the prisoner must show
“a reasonable probability that, but for counsel’s deficient
failure to consult with him about an appeal, he would have
timely appealed.” Id.
In his opening brief, Malone did not contest the
district court’s conclusion that he never directed his attorney
to file an appeal; he contended only that his attorney did not
adequately consult with him regarding an appeal as required by
Flores-Ortega. In his reply brief, Malone claims that his
statements after sentencing were sufficient to require his
attorney to file a notice of appeal. However, because this
claim is raised for the first time in his reply brief, Malone
has waived consideration. See Yousefi v. INS, 260 F.3d 318, 326
(4th Cir. 2001). In addition, our COA was narrowly tailored to
the question of adequate consultation, and Malone has not moved
to expand the certificate.
The next question is whether counsel was required to
consult with Malone, that is, whether Malone’s attorney was on
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notice that Malone would likely want to appeal. While it is
debatable whether a rational defendant would want to pursue an
appeal given the facts of this case, counsel was still required
to consult with Malone if Malone “reasonably demonstrated to
counsel that he was interested in appealing.” Flores-Ortega,
528 U.S. at 480. Malone told his attorney directly after
sentencing that he wanted to appeal. In addition, Malone’s son
and daughter-in-law both spoke with counsel about Malone’s
desire to appeal. We conclude, as the district court did, that
these requests adequately demonstrated Malone’s interest in
appealing and triggered counsel’s duty to properly consult with
him regarding an appeal.
Turning to the question of whether counsel’s
consultation was adequate, the district court concluded that
counsel’s discussions with Malone’s son and daughter-in-law and
his drafting a letter that was not received prior to the
expiration of the time to appeal satisfied his duty to consult.
We determine that the district court’s holding was in error as a
matter of law. First, counsel’s advice, even if received by
Malone, did not adequately inform Malone of the advantages and
disadvantages of a plea. Counsel incorrectly advised Malone’s
family members that filing an appeal could result in the
Government seeking an enhanced sentence by removing his
acceptance of responsibility adjustment. While the plea
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agreement intimated that this was a possibility, there is no
procedure by which this could be completed, and the district
court concurred that this advice was incorrect.
Nonetheless, the district court concluded that,
because an appeal might have resulted in an increased sentence,
counsel’s advice was sufficient. Pursuant to the plea
agreement, following the filing of a notice of appeal by Malone,
the Government would have been free to bring additional charges
and recharge dismissed counts. Such a course of conduct might
indeed have resulted in an increased sentence, but it would be
only a risk, not a probability. * Moreover, Malone’s waiver did
not waive the right to bring any and all appeals; an appeal
waiver cannot waive certain fundamental claims. See United
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). Thus, the
language in the plea agreement regarding sanctions for the mere
filing of a notice of appeal on any grounds whatsoever was
likely unenforceable, and counsel did not recognize this. As
the consequences for filing a notice of appeal in this case were
legally complex, counsel’s assertion that Malone likely faced a
*
First, it is unknown whether the Government would embark
on another prosecution of Malone given the time and expense
involved. Second, Malone may or may not have been convicted of
the additional charges. Third, any additional sentence may have
been run concurrently to his current sentence, given that the
dismissed counts were taken into account in determining Malone’s
initial offense level.
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longer sentence if he filed a notice of appeal, even if received
by Malone, did not adequately advise Malone of all the
circumstances surrounding a potential appeal.
In addition, counsel violated his responsibilities by
stating in his untimely letter and in discussion with Malone’s
son that he would not file a notice of appeal on Malone’s
behalf. Counsel refused to represent Malone on appeal and
informed him that he needed to secure other counsel to file an
appeal for him. An attorney is not at liberty to disregard the
appellate wishes of his client. Poindexter, 492 F.3d at 269.
An attorney is obligated to file a requested appeal even if the
attorney believes the appeal is meritless or even harmful to the
client’s interests. Peak, 992 F.2d at 41; Poindexter, 492 F.3d
at 273. Counsel’s statement that he would not file a notice of
appeal rendered the remainder of his consultation suspect. That
is, Malone would not likely make an explicit request for an
appeal given his attorney’s statement that he would not file
one.
Further, even if counsel’s statements and advice were
somehow sufficient, he made no effort to determine whether
Malone actually received his advice or whether Malone had made a
decision. Given Malone’s repeated inquiries regarding an
appeal, counsel’s failure to ascertain Malone’s decision was
unreasonable. Thus, we conclude that Malone’s attorney failed
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to provide proper consulation in that he incorrectly and
incompletely advised Malone regarding the advantages and
disadvantages of a plea and then failed to determine whether
Malone wanted to appeal.
Regarding the prejudice prong, the district court
concluded that, had Malone wished to appeal, he could have done
so on his own. However, counsel never informed Malone of this
option and instead incorrectly informed him that he needed to
find another attorney. Moreover, counsel provided incorrect
information to Malone’s family members, which may have
discouraged Malone from filing an appeal. It is undisputed that
Malone expressed an interest in appealing to his attorney, that
his daughter-in-law also inquired about an appeal, that Malone
sent his son to find out about an appeal, and that Malone
attempted to set up a meeting to discuss his appeal.
While it is true that the court stated at sentencing
that the clerk would prepare and file a notice of appeal for
Malone, if so requested, the court did not ensure that Malone
heard or understood this remark. Moreover, counsel’s statements
that Malone would have to find another attorney to appeal were
made after the court’s statements and may have confused Malone.
In any event, immediately following sentencing, Malone expressed
a clear, undisputed interest in appealing. The district court
implicitly concluded that, subsequently, Malone must have
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changed his mind or he would have filed a pro se notice of
appeal. However, the district court ignored that, after his
expressed desire to appeal, Malone received incorrect advice and
instructions from his attorney. Thus, even if Malone did change
his mind, it does not undermine his showing of prejudice. We
hold that Malone has made a sufficient showing that, had his
attorney properly consulted with him, he would have filed a
timely notice of appeal. See Frazer v. South Carolina, 430 F.3d
696, 712 (4th Cir. 2005) (finding that Frazer’s “unwavering and
ongoing” interest in an appeal, coupled with his “tenacity in
pursuing habeas relief,” adequately satisfied the prejudice
prong).
Accordingly, we reverse the district court’s denial of
Malone’s § 2255 motion, vacate his sentence, and remand the case
for reentry of that sentence, so that Malone may have a second
chance to seek direct review. We deny Malone’s motion for
judicial notice. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
REVERSED
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