UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6941
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ISABEL GONZALEZ, a/k/a Chabello, a/k/a Isabel Garcia,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:00-cr-00077-BO-1)
Argued: March 19, 2014 Decided: May 6, 2014
Before MOTZ, KING, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, PSC,
Covington, Kentucky, for Appellant. Seth Morgan Wood, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Isabel Gonzalez (“Appellant”), a federal
prisoner, filed a 28 U.S.C. § 2255 motion contending, inter
alia, that he received ineffective assistance of counsel,
including claims that his trial counsel failed to file a direct
appeal following his sentencing and failed to properly counsel
him regarding an appeal. The district court denied relief, and
we granted a certificate of appealability. Because the district
court failed to consider Appellant’s claim that he received
ineffective assistance of counsel due to his trial counsel’s
alleged failure to counsel him regarding an appeal, we remand
the case with instructions to the district court to address this
allegation.
I.
A.
On January 11, 2001, Appellant pled guilty, pursuant
to a written plea agreement, to conspiracy to import at least
five kilograms of cocaine, in violation of 21 U.S.C. §§ 952 and
963. Appellant’s written plea agreement contained a standard
appellate waiver, in which Appellant agreed
[t]o waive knowingly and expressly the right
to appeal whatever sentence is imposed,
including any issues that relate to the
establishment of the Guideline range,
reserving only the right to appeal from an
upward departure from the Guideline range
that is established at sentencing, and
2
further to waive all rights to contest the
conviction or sentence in any post-
conviction proceeding, including one
pursuant to 28 U.S.C. § 2255, excepting an
appeal or motion based upon grounds of
ineffective counsel or prosecutorial
misconduct not known to the defendant at the
time of the defendant’s guilty plea.
J.A. 17-18, ¶ c. 1 On October 2, 2001, the district court
sentenced Appellant to 365 months imprisonment, the top of the
applicable United States Sentencing Guideline range, and five
years of supervised release. Appellant did not directly appeal.
B.
Appellant filed his initial motion for post conviction
relief, pursuant to 28 U.S.C. § 2255, on October 3, 2002. Since
the filing of that motion, this case has had a protracted
procedural history. In his initial § 2255 motion, Appellant
alleged ineffective assistance of counsel, namely that counsel
failed to file a requested notice of appeal and erroneously
advised him that he had no right to file an appeal. Without
holding a hearing, the district court granted the Government’s
motion to dismiss, finding that Appellant waived his right to
file a § 2255 motion in his plea agreement and had offered no
evidence negating the voluntary nature of his plea. We granted
Appellant a certificate of appealability and ultimately remanded
1
Citations to the Joint Appendix (“J.A.”) refer to the
Joint Appendix filed by the parties in this appeal.
3
the case to the district court for consideration of Appellant’s
ineffective assistance of counsel claims. See United States v.
Gonzalez, 97 F. App’x 447 (4th Cir. 2004) (per curiam).
On remand, the district court held what it described
as a “motions hearing” on December 17, 2004, at which it
questioned Appellant and his trial counsel under oath about
Appellant’s claims of ineffective assistance of counsel. The
district court denied Appellant’s request for appointed counsel
to represent him at that hearing. Following that hearing, the
district court entered an order on January 14, 2005 (“January
14, 2005 Order”), denying Appellant’s § 2255 motion. On July
22, 2005, Appellant filed a notice seeking to appeal the
district court’s January 14, 2005 Order. We dismissed
Appellant’s appeal for lack of jurisdiction because the notice
of appeal was not timely filed. See United States v. Gonzalez,
179 F. App’x 174 (4th Cir. 2006) (per curiam) (explaining that a
notice of appeal must be filed within 60 days after the entry of
the district court’s final judgment, and here, Appellant’s
notice of appeal was filed more than six months after the entry
of final judgment).
On October 20, 2006, Appellant filed a pro se motion
for relief from the district court’s January 14, 2005 Order,
pursuant to Rule 60(b)(1) of the Federal Rules of Civil
Procedure, which allows the court to grant relief for reasons of
4
“mistake, inadvertence, surprise, or excusable neglect,”
provided that the motion is made “no more than a year after the
entry of the judgment.” Fed. R. Civ. P. 60(b)(1), (c)(1).
Appellant sought leave to appeal the denial of his § 2255 motion
on the grounds that he was improperly denied the assistance of
counsel at the December 17, 2004 evidentiary hearing. He
alleged that his failure to note a timely appeal was “excusable
neglect” under Rule 60(b)(1) because he did not receive notice
of the court’s January 14, 2005 Order until June 10, 2005. The
district court concluded that it was without jurisdiction to
extend the time to appeal and denied the motion, and we denied a
certificate of appealability and dismissed Appellant’s appeal.
See United States v. Gonzalez, 256 F. App’x 591 (4th Cir. 2007)
(per curiam).
On March 18, 2010, Appellant filed another motion for
relief from the district court’s January 14, 2005 Order, this
time pursuant to Rule 60(b)(6), which allows relief for “any
other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).
Appellant maintained that he was improperly denied appointed
counsel for the hearing on December 17, 2004, in violation of
Rule 8 of the Rules Governing § 2255 Proceedings for the United
States District Courts. The district court denied the motion as
untimely because it was filed more than five years after the
court’s order dismissing Appellant’s § 2255 motion. Appellant
5
appealed, arguing that he diligently pursued his claim and filed
within a reasonable time. Again, we denied a certificate of
appealability and dismissed the appeal. See United States v.
Gonzalez, 407 F. App’x 705 (4th Cir. 2011) (per curiam).
C.
This matter comes before us again via the district
court’s ruling on Appellant’s third motion filed pursuant to
Rule 60(b) of the Federal Rules of Civil Procedure. On August
15, 2011, Appellant moved the district court to vacate the
January 14, 2005 Order as void, this time pursuant to Rule
60(b)(4), which allows for relief from a final judgment, order,
or proceeding based on a finding that the “judgment is void.”
Fed. R. Civ. P. 60(b)(4). Appellant argued that because he was
deprived of appointed counsel at the December 17, 2004 hearing,
he was deprived of due process, and thus, the district court’s
judgment was void. After concluding that the December 17, 2004
hearing should have, in fact, been characterized as an
“evidentiary hearing” and Appellant should have been appointed
counsel, the district court determined in an order issued
September 28, 2011, that it would “again hold a hearing to
determine the validity of [Appellant’s] claims of ineffective
assistance of counsel.” J.A. 269. After appointing counsel and
setting an evidentiary hearing -- essentially granting
6
Appellant’s requested relief -- the district court then denied
Appellant’s Rule 60(b)(4) motion as “moot.” J.A. 270.
Appellant’s new counsel then filed a “Memorandum of
Law in Support of Claim Relating to Failure to File Notice of
Appeal.” J.A. 271. In that memorandum, Appellant alleged,
among other claims, that his trial counsel failed to file a
requested notice of appeal and “failed to properly consult with
him regarding an appeal when a rational defendant would want to
appeal, and when he had reasonably demonstrated to counsel that
he was interested in appealing.” J.A. 272. The district court
conducted an evidentiary hearing on April 10, 2012. During this
hearing, both Appellant and his trial counsel again testified
under oath.
Trial counsel testified that Appellant specifically
instructed her that he wished to cooperate, and she understood
that pursuing an appeal would be contrary to Appellant’s stated
desire to cooperate with authorities. Trial counsel did not
specifically recall discussing an appeal with Appellant
following his sentencing hearing, but noted that per her regular
practice, she
would have told him when I went back to see
him on that day that if he wanted to appeal
that he could, but if he wanted to
cooperate, then I would advise him against
appealing, as well as the fact that his plea
agreement had an appeal waiver in it.
7
J.A. 319. Trial counsel further testified, however, that she
would not have discussed in any detail the possible advantages
and disadvantages to entering a notice of appeal.
Appellant testified that he never saw trial counsel
after his sentencing hearing. He further testified that he had
a fellow inmate draft a letter on his behalf which Appellant
sent to trial counsel asking her to come see him. According to
Appellant, it was his intention to talk to her about an appeal,
but trial counsel never responded. Although Appellant did not
submit a copy of the letter for the record, on cross
examination, the Government’s counsel read a portion of the
transcript from the first evidentiary hearing on December 17,
2004, where Appellant’s trial counsel had read the letter into
evidence. 2 Appellant claimed he didn’t “know what the man put in
2
Government’s counsel stated,
That letter read, my name is Isabel Gonzalez
Garcia. I got sentenced the other day. I
would like to now [sic] how much my fine is
and I would like you there when I get the
brief please. Before they say my
cooperation is no good. I need you there.
When they come back, please see me so you
can tell me everything just for about 15
minutes. I don’t know if they are going to
send me back to Texas. I don’t know if they
are going to give me drug program. A lot of
things I don’t understand. Please come and
see me.
J.A. 337.
8
the letter,” but the purpose was to have trial counsel come and
see him. J.A. 337. Appellant also averred that he told his
trial counsel that he wanted to appeal because she promised him
that if he took a guilty plea he would be sentenced to only 14
years in prison. According to Appellant, trial counsel stated
that he could not appeal because he had waived his right to do
so, and that he could only raise ineffective assistance of
counsel, which she would not pursue on his behalf. 3
Following this evidentiary hearing, the district court
again dismissed Appellant’s § 2255 motion. In its May 15, 2012
dismissal order (“May 15, 2012 Order”), with regard to
Appellant’s claim of ineffective assistance of counsel for
failure to file a direct appeal, the district court found,
[Appellant] did not call [trial counsel] to
request an appeal, nor did her [sic] write
her a letter unequivocally stating that he
wished to file an appeal.
Accordingly, in light of [trial
counsel’s] testimony and [Appellant’s]
failure to present any evidence to the
contrary, the Court finds that [Appellant]
did not make an unequivocal request to
counsel to notice a direct appeal.
[Appellant’s] claim for ineffective
assistance as to this matter must therefore
fail.
3
It is unclear from the record before us exactly when this
alleged conversation took place.
9
J.A. 343. The district court made no findings, however, as to
whether Appellant’s trial counsel was ineffective for allegedly
failing to counsel Appellant regarding an appeal.
We granted a certificate of appealability on the
following issues: (1) whether the district court had
jurisdiction to reopen its 2005 denial of Appellant’s § 2255
motion; and (2) whether Appellant’s trial counsel was
ineffective in allegedly failing to counsel him regarding an
appeal.
Both Appellant and the Government agree the district
court had jurisdiction to reopen its 2005 denial of Appellant’s
§ 2255 motion pursuant to Rule 60(b) because Appellant’s Rule
60(b)(4) motion challenged a defect in the collateral review
process, and therefore, was not a successive § 2255 motion. The
parties also agree that the district court did not address
whether Appellant’s trial counsel was ineffective in allegedly
failing to counsel Appellant regarding an appeal in the May 15,
2012 Order. Appellant next argues that his trial counsel was
ineffective because the record demonstrates that he showed an
interest in appealing, but counsel failed to consult him
regarding an appeal. The Government contends, however, that
Appellant’s trial counsel was not ineffective. According to the
Government, the district court in its May 15, 2012 Order found
that Appellant did not unequivocally express a desire to appeal
10
to trial counsel. The Government further contends that finding,
coupled with trial counsel’s testimony that she did counsel
Appellant regarding an appeal, is enough for us to conclude
trial counsel was not ineffective.
II.
The jurisdictional issue presented by this case --
whether Appellant’s Rule 60(b)(4) motion should have been
treated as a successive § 2255 motion -- is one that we review
de novo. See United States v. MacDonald, 641 F.3d 596, 609 (4th
Cir. 2011). However, “[d]istrict court decisions granting or
denying Rule 60(b) relief are reviewed for abuse of discretion,
although the exercise of discretion cannot be permitted to stand
if we find it rests upon an error of law.” United States v.
Winestock, 340 F.3d 200, 204 (4th Cir. 2003) (internal quotation
marks omitted).
In our consideration of the district court’s dismissal
of Appellant’s § 2255 motion, we review the district court’s
legal conclusions de novo and its findings of fact for clear
error. United States v. Fisher, 711 F.3d 460, 464 (4th Cir.
2013). “We review de novo mixed questions of law and fact
addressed by the district court -- including the issue of
whether a lawyer’s performance was constitutionally adequate.”
United States v. Roane, 378 F.3d 382, 395 (4th Cir. 2004)
(emphasis supplied).
11
III.
A.
We first address whether the district court possessed
jurisdiction to reopen its 2005 denial of Appellant’s § 2255
motion. It is undisputed that this matter found its way before
the district court again via Appellant’s filing of a Rule
60(b)(4) motion. Although in its September 28, 2011 order the
district court stated it was denying Appellant’s Rule 60(b)(4)
motion as moot, the district court, in fact, granted Appellant
the relief he requested, by holding another evidentiary hearing
with appointed counsel, thereby implicitly granting Appellant’s
motion. The district court provided no other basis for
reopening its January 14, 2005 final judgment in Appellant’s
§ 2255 proceeding. Therefore, to establish jurisdiction, we
must consider whether a Rule 60(b) motion was the proper vehicle
to reopen the matter. 4
It is well settled law that a district court lacks
jurisdiction over a successive § 2255 motion unless this court
authorizes such a filing. See United States v. Winestock, 340
4
We recognize that the Government has conceded
jurisdiction. See Appellee’s Br. 17, 20. However, because
“subject-matter jurisdiction can never be forfeited or waived;
it involves a court’s power to hear a case,” we pause to assure
ourselves of jurisdiction in this case. United States v.
Hartwell, 448 F.3d 707, 715 (4th Cir. 2006) (internal quotation
marks omitted).
12
F.3d 200, 205-06 (4th Cir. 2003). “[D]istrict courts must treat
Rule 60(b) motions as successive collateral review applications
when failing to do so would allow the applicant to evade the bar
against relitigation of claims presented in a prior application
or the bar against litigation of claims not presented in a prior
application.” Id. at 206 (internal quotation marks omitted,
emphasis in original). However, not all Rule 60(b) motions
should “be treated as successive applications; instead, the
proper treatment of the motion depends on the nature of the
claims presented.” Id. at 206-07. Although there is “no
infallible test” for determining when a Rule 60(b) motion should
be treated as a successive application, “a relatively
straightforward guide is that a motion directly attacking the
prisoner’s conviction or sentence will usually amount to a
successive application, while a motion seeking a remedy for some
defect in the collateral review process will generally be deemed
a proper motion to reconsider.” Id. at 207.
Appellant’s Rule 60(b)(4) motion challenged his lack
of appointed counsel to represent him at the December 17, 2004
hearing, during which evidence was adduced in consideration of
his § 2255 motion. Rule 8(c) of the Rules Governing § 2255
Proceedings for the United States District Courts states, “[i]f
an evidentiary hearing is warranted, the judge must appoint an
attorney to represent a moving party who qualifies [as indigent]
13
under 18 U.S.C. § 3006A.” Rule 8(c) of the Rules Governing
§ 2255 Proceedings (emphasis supplied). “[A]ll of our sister
circuits that have considered the issue have held that Rule 8(c)
requires the court to appoint counsel for indigent petitioners
if it holds a § 2255 evidentiary hearing, and the failure to do
so constitutes structural error requiring automatic vacatur or
reversal.” Bucci v. United States, 662 F.3d 18, 34 (1st Cir.
2011) (following the other circuits and concluding the indigent
defendant was entitled to an evidentiary hearing with appointed
counsel). 5 Moreover, the district court may not avoid appointing
counsel simply by deeming the hearing to be something other than
an “evidentiary” hearing. See, e.g., id. at 34-35 (quoting
Shepherd v. United States, 253 F.3d 585, 587 (11th Cir. 2001)
(per curiam) (“[W]e observe that the proceedings clearly
resembled an evidentiary hearing, despite the district court’s
unwillingness to categorize it as such, because the court placed
5
See also Graham v. Portuondo, 506 F.3d 105, 107 n.2 (2d
Cir. 2007) (per curiam) (reversing the district court for
failure to appoint counsel for an evidentiary hearing on a
petition filed pursuant to 28 U.S.C. § 2254 and recognizing,
“the appointment of counsel requirement of the Rules Governing §
2254 Cases is identical to that of the Rules Governing § 2255
Proceedings”); United States v. Bendolph, 409 F.3d 155, 160 (3d
Cir. 2005) (en banc); Green v. United States, 262 F.3d 715, 717-
18 (8th Cir. 2001); Shepherd v. United States, 253 F.3d 585, 588
(11th Cir. 2001) (per curiam); Swazo v. Wyo. Dep’t of Corr.
State Penitentiary Warden, 23 F.3d 332, 334 (10th Cir. 1994)
(ruling in the context of a § 2254 proceeding); United States v.
Vasquez, 7 F.3d 81, 85 (5th Cir. 1993); Rauter v. United States,
871 F.2d 693, 695-97 (7th Cir. 1989).
14
Shepherd under oath and questioned him extensively concerning
the basis of his claims. . . . Thus, . . . the district court,
having determined that an evidentiary hearing was necessary, was
obligated under Rule 8 of the Rules Governing § 2255 Motions to
appoint counsel for Shepherd.”).
Because Appellant’s motion focused on a “defect in the
collateral review process” -- failure to appoint counsel for an
evidentiary hearing -- rather than the substantive allegations
of his claims, it is properly characterized as a Rule 60 motion
rather than as a successive application for collateral review.
Winestock, 340 F.3d at 207. Hence, we conclude the district
court had jurisdiction to reopen the matter without
authorization from this court. 6
B.
We now turn to the merits of Appellant’s appeal --
whether Appellant’s trial counsel was ineffective in failing to
file a direct appeal and in allegedly failing to counsel him
regarding an appeal.
To establish ineffective assistance of counsel,
Appellant must show that: (1) counsel’s failures fell below an
6
Whether the district court abused its discretion in
granting Appellant’s Rule 60(b)(4) motion is a nonjurisdictional
issue which the Government waived by neglecting to allege any
pertinent challenge in the district court -- on timeliness, law-
of-the-case, or any other ground.
15
objective standard of reasonableness, and (2) counsel’s
deficient performance was prejudicial. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). “[C]ourts must judge the
reasonableness of counsel’s challenged conduct on the facts of
the particular case, viewed as of the time of counsel’s conduct,
and judicial scrutiny of counsel’s performance must be highly
deferential.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)
(internal quotation marks and citations omitted). The Supreme
Court has “long held that a lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts
in a manner that is professionally unreasonable.” Id. We have
recognized that this is true “even though the defendant may have
waived his right to challenge his conviction and sentence in the
plea agreement.” United States v. Poindexter, 492 F.3d 263, 265
(4th Cir. 2007).
In Flores-Ortega, “the Supreme Court applied
Strickland to hold that counsel’s duty to consult with the
defendant generally requires counsel to discuss with the
defendant whether to pursue an appeal.” Frazer v. South
Carolina, 430 F.3d 696, 704 (4th Cir. 2005). Specifically, in
Flores-Ortega the Court stated,
counsel has a constitutionally imposed duty
to consult with the defendant about an
appeal when there is reason to think either
(1) that a rational defendant would want to
appeal (for example, because there are
16
nonfrivolous grounds for appeal), or (2)
that this particular defendant reasonably
demonstrated to counsel that he was
interested in appealing.
528 U.S. at 480 (emphasis supplied). In assessing whether an
attorney had a constitutional duty to consult,
the Court indicated that several factors
were relevant, including whether the
conviction followed a trial or guilty plea.
In cases involving guilty pleas, the Court
instructed lower courts to consider whether
the defendant received the sentence
bargained for as part of the plea and
whether the plea expressly reserved or
waived appeal rights.
Poindexter, 492 F.3d at 268 (internal quotation marks omitted).
Although not the determinative factor, “a highly relevant factor
in this inquiry will be whether the conviction follows a trial
or a guilty plea, both because a guilty plea reduces the scope
of potentially appealable issues and because such a plea may
indicate that the defendant seeks an end to judicial
proceedings.” Flores-Ortega, 528 U.S. at 480.
Of note, this duty to consult also extends to the
defendant who may have waived his right to challenge his
conviction and sentence in a written plea agreement. As we have
previously recognized, “[i]n preparation for the appellate phase
of the case, an attorney in an appeal waiver case still owes
important duties to the defendant.” Poindexter, 492 F.3d at
271.
17
First and foremost, the attorney, as
recognized in Flores-Ortega, has the duty to
respect the appellate wishes of his client
by filing a timely notice of appeal if he is
unequivocally instructed to do so. Second,
as further recognized in Flores-Ortega, even
if his client does not express (or clearly
express) a desire to appeal, the attorney
may be required to file a timely notice of
appeal after appropriate consultation with
. . . his client.
Id. (internal quotation marks omitted). This, however, does not
end the court’s inquiry.
In addition to showing that counsel’s performance in
failing to consult was deficient, the movant must also establish
prejudice resulting from such failure. Flores-Ortega, 528 U.S.
at 484. “If counsel fails to consult, the defendant may
demonstrate prejudice by showing that a rational defendant would
want to appeal. The defendant may do this by demonstrating
either a) there were non-frivolous issues for appeal, or b) he
had adequately indicated his interest in appealing.” Frazer,
430 F.3d at 707-08. However, “[i]n demonstrating prejudice, the
defendant is under no obligation to demonstrate that his
hypothetical appeal might have had merit.” Poindexter, 492 F.3d
at 269 (internal quotations omitted).
Thus, even when, as here, a defendant agrees to an
appeal waiver, his counsel still owes him effective
representation with respect to a potential appeal.
Specifically, effective representation in this circumstance
18
includes: (1) filing a timely notice of appeal if requested to
do so, and (2) consultation regarding an appeal whether or not
instructed to file an appeal when there are nonfrivolous grounds
for appeal or when the defendant demonstrates a mere interest in
appealing. See Flores-Ortega, 528 U.S. at 480; Poindexter, 492
F.3d at 271. Here, the district court made findings as to the
first duty, but failed to do so as to the second.
In the May 15, 2012 Order, the district court
specifically found that Appellant “did not call [trial counsel]
to request an appeal, nor did her [sic] write her a letter
unequivocally stating that he wished to file an appeal.” J.A.
343. Thus, the district court found that Appellant “did not
make an unequivocal request to counsel to notice a direct
appeal,” and concluded that Appellant’s “claim for ineffective
assistance as to this matter must therefore fail.” Id.
This leaves open the second inquiry as to whether his
trial counsel failed to counsel Appellant regarding an appeal,
and, if so, whether the failure amounted to a constitutionally
deficient performance. The district court failed to address
this issue inasmuch as it made no findings in this regard. As a
result, we must return this matter to the district court to make
findings based on the record before it, or if necessary, on the
basis of a new evidentiary hearing regarding Appellant’s
19
allegation that his trial counsel was ineffective in allegedly
failing to counsel him regarding an appeal.
IV.
Pursuant to the foregoing, this matter is remanded to
the district court.
VACATED AND REMANDED
20