RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0222p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Petitioner-Appellant, -
ROBERT DAN CAMPBELL,
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No. 11-3233
v.
,
>
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Respondent-Appellee. -
UNITED STATES OF AMERICA,
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Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
Nos.: 3:08-cr-196-1; 3:10-cv-2818—James G. Carr, District Judge.
Decided and Filed: July 19, 2012
Before: SILER and MOORE, Circuit Judges; VAN TATENHOVE, District Judge.*
_________________
COUNSEL
ON BRIEF: Thomas A. Karol, UNITED STATES ATTORNEY’S OFFICE, Toledo,
Ohio, for Appellee. Robert Dan Campbell, Wapakoneta, Ohio, pro se.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant Robert Dan
Campbell pleaded guilty to a one-count information charging him with conspiracy to
commit wire and mail fraud in violation of 18 U.S.C. §§ 1341, 1343, by engaging in a
mortgage-fraud scheme that violated 18 U.S.C. § 371. As part of the plea agreement,
Campbell partially waived the right to appeal his conviction and sentence. In a motion
to vacate under 28 U.S.C. § 2255, Campbell nevertheless contended, among other things,
*
The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
1
No. 11-3233 Campbell v. United States Page 2
that his attorney’s failure to file an appeal despite Campbell’s alleged express instruction
to do so amounted to ineffective assistance of counsel. Without conducting an
evidentiary hearing to answer the factual question presented by Campbell’s
allegations—namely, whether Campbell did, in fact, unequivocally instruct his attorney
to file an appeal on his behalf—the district court denied Campbell’s § 2255 motion. We
granted a certificate of appealability on the sole issue of whether an attorney’s failure to
file a notice of appeal under these specific circumstances constitutes ineffective
assistance of counsel. We hold that it does. Accordingly, we VACATE the district
court’s judgment and REMAND the case for further proceedings consistent with this
opinion.
I. BACKGROUND
On April 23, 2008, the U.S. Attorney for the Northern District of Ohio issued a
felony information alleging that Campbell, a Lima, Ohio real-estate investor, participated
in a mortgage-fraud conspiracy by, among other things, falsifying mortgage documents,
covertly paying borrowers’ closing costs, and “flip[ping]” properties bought by a straw
purchaser and resold to Campbell at an inflated price. R. 1 (Information ¶¶ 3–4, at 2).
At his arraignment, Campbell agreed to waive indictment and plead guilty to the charges
as set forth in the information. Pursuant to the plea agreement, Campbell also agreed,
with only a few exceptions, to waive the right to challenge his conviction or sentence on
either direct appeal or collateral review.1 The magistrate judge conducting the plea
1
In full, the appeal-waiver provision is as follows:
Defendant acknowledges having been advised by counsel of Defendant’s rights, in
limited circumstances, to appeal the conviction or sentence in this case, including the
appeal right conferred by 18 U.S.C. § 3742, and to challenge the conviction or sentence
collaterally through a post-conviction proceeding, including a proceeding under
28 U.S.C. § 2255. Defendant expressly waives those rights except as reserved below.
Defendant reserves the right to appeal: (a) any punishment in excess of the statutory
maximum; (b) any sentence to the extent it exceeds the maximum of the sentencing
range determined under the advisory Sentencing Guidelines in accordance with the
sentencing stipulations and computations in this agreement, using the Criminal History
Category found applicable by the Court. Nothing in this paragraph shall act as a bar to
the defendant perfecting any legal remedies defendant may otherwise have on appeal
or collateral attack respecting claims of ineffective assistance of counsel, voluntariness
of this plea and accompanying waivers, or prosecutorial misconduct.
R. 7 (Plea Agreement ¶ 10, at 5).
No. 11-3233 Campbell v. United States Page 3
hearing confirmed Campbell’s understanding of the waiver, R. 10 (Plea Hr’g Tr. at 22),
and concluded that Campbell voluntarily and knowingly entered the plea, id. at 42.
The district court held Campbell’s sentencing hearing on September 20, 2010.2
Based on a total offense level of 13 and a criminal history category of I, the district court
determined the applicable Guideline range to be 12 to 18 months in prison.
R. 46 (Sentencing Hr’g Tr. at 16). The district court then imposed a below-Guidelines
sentence of eight months in prison and a $35,000 fine. Id. at 21. At the end of the
hearing, the district court reaffirmed Campbell’s understanding of the appeal waiver, but
informed Campbell that to the extent that he did have grounds to appeal, he needed to
do so within ten days of the entry of final judgment. Id. at 25. No notice of appeal was
filed.
On December 13, 2010, Campbell filed a motion to vacate, set aside, or correct
a sentence pursuant to 28 U.S.C. § 2255. The motion raised four issues: (1) whether
Campbell was denied effective assistance of counsel when his attorney failed to file a
requested notice of appeal; (2) whether counsel was ineffective in permitting Campbell
to plead guilty when, according to Campbell, he is actually innocent; (3) whether the
sentence imposed was “illegal” and procedurally unreasonable; and (4) whether the
prosecutor violated Campbell’s rights under Brady v. Maryland, 373 U.S. 83 (1963), or
otherwise engaged in prosecutorial misconduct. Campbell’s motion also noted the
usefulness of an evidentiary hearing to resolving the merits of his claims. Without
conducting any hearing, the district court rejected all four of Campbell’s claims. With
respect to the first issue, the district court held that because the plea agreement contained
an appeal-waiver provision with limited, inapplicable exceptions, Campbell’s attorney’s
failure to file an appeal “did not deprive [Campbell] of [his] Sixth Amendment rights.”
R. 3 (Dist. Ct. Op. at 3). The district court reasoned that, because of the broad waiver
provision, any appeal would have been dismissed; thus, the district court held that
Campbell could not demonstrate ineffective assistance under the standard set forth in
2
The district court deferred sentencing for approximately two years to permit the sale of certain
properties Campbell owned.
No. 11-3233 Campbell v. United States Page 4
Strickland v. Washington, 466 U.S. 668 (1984). Finding no basis for a good-faith appeal
with respect to this or any of Campbell’s other claims, the district court declined to issue
a certificate of appealability under 28 U.S.C. § 2253(c). On review, we agreed with the
district court’s assessment of claims two through four, but, citing a circuit split and the
absence of precedential Sixth Circuit authority on the issue of the attorney’s failure to
file a requested notice of appeal, see Sarlog v. United States, 422 F. App’x 399, 403
(6th Cir. 2011), we granted the certificate of appealability solely with respect to the
question now before us. Campbell v. United States, No. 11-3233, order at
3 (6th Cir. Sept. 22, 2011).
II. ANALYSIS
We review de novo the district court’s denial of a motion to vacate under
28 U.S.C. § 2255, but review the district court’s factual findings only for clear error.
United States v. Doyle, 631 F.3d 815, 817 (6th Cir. 2011). “Ineffective assistance of
counsel claims are mixed questions of law and fact,” which we also review de novo. Id.
Although we review a district court’s refusal to conduct an evidentiary hearing with
respect to a defendant’s § 2255 motion only for abuse of discretion, such a hearing “is
required unless the record conclusively shows that the petitioner is entitled to no relief.”
Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (internal quotation marks
omitted).
Our analytical starting point is Strickland v. Washington, 466 U.S. 668, 687
(1984), in which the Supreme Court held that criminal defendants have a Sixth
Amendment right to a “reasonably effective” attorney and established the now-familiar
test for ineffective assistance of counsel. Specifically, to prevail on an ineffective-
assistance claim, defendants must show (1) “that counsel’s representation fell below an
objective standard of reasonableness,” id. at 688, and (2) “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different,” id. at 694. In a guilty plea context “the defendant must
show that there is a reasonable probability that, but for counsel’s errors, he would not
No. 11-3233 Campbell v. United States Page 5
have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474
U.S. 52, 59 (1985).
In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court applied the
Strickland test to a case involving an attorney’s failure to file a notice of appeal.
Although Flores-Ortega addressed an attorney’s obligations with respect to counseling
a defendant who had not waived any appeal rights and who had not clearly expressed a
desire to appeal, the Court’s reasoning began with the long-established rule “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. at 477. Moving to Strickland’s
prejudice prong, the Court further held that “when 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 entitling him
to an appeal.” Id. at 484. In reaching its conclusion, the Court rejected the proposition
that a defendant must always establish prejudice by showing possible success on the
merits, noting that “it is unfair to require an indigent, perhaps pro se, defendant to
demonstrate that his hypothetical appeal might have had merit before any advocate has
ever reviewed the record in his case in search of potentially meritorious grounds for
appeal.” Id. at 486. Instead, deficient performance in this context causes prejudice
because it causes the “denial of the entire judicial proceeding itself, which a defendant
wanted at the time and to which he had a right.” Id. at 483. Thus, the defendant need
only “demonstrate that, but for counsel’s deficient conduct, he would have appealed,”
id. at 486.
In light of the specific propositions of law outlining the obligations of a criminal
defense attorney at the appeal stage, and assuming, as Campbell claims in his brief, that
he did direct his attorney to file a notice of appeal,3 we conclude that Flores-Ortega
largely governs this case. Our own precedent conforms with this result. Two years
3
Whether Campbell actually made this request is unclear from the record. In its response to
Campbell’s § 2255 motion, the government refused to concede that Campbell gave his attorney such an
instruction and instead argued that the fact was irrelevant to the ineffective-assistance question.
R. 43 (Resp. in Opp’n to Mot. Filed Under 28 U.S.C. § 2255, at 8 n.5). Because it adopted the
government’s reasoning, the district court never made a factual finding with respect to this issue.
No. 11-3233 Campbell v. United States Page 6
before Flores-Ortega, we made clear “that the failure to perfect a direct appeal, in
derogation of a defendant’s actual request, is a per se violation of the Sixth
Amendment.” Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998). Consistent
with Flores-Ortega, we also indicated that such a violation occurs “without regard to the
probability of success on appeal”; because such a failure on the attorney’s part deprives
the defendant of any counsel whatsoever, for purposes of the Strickland analysis,
“[p]rejudice must be presumed.” Ludwig, 162 F.3d at 459.
The government maintains that the existence of an appeal waiver differentiates
the attorney conduct in this case from that presented in Flores-Ortega. Admittedly,
neither Flores-Ortega nor Ludwig addresses a plea agreement that waives all or most of
the defendant’s rights on appeal. Nevertheless, even though a defendant clearly is
entitled to waive the right to an appeal by executing a plea agreement, even the broadest
waiver does not absolutely foreclose some degree of appellate review. To the contrary,
our cases have repeatedly recognized that a waiver of appeal rights can be challenged
on various—albeit narrow—grounds, including “that it was not knowing and voluntary,
was not taken in compliance with [Federal Rule of Criminal Procedure] 11, or was the
product of ineffective assistance of counsel.” United States v. Toth, 668 F.3d 374, 377
(6th Cir. 2012) (internal quotation marks omitted); see also United States v. Caruthers,
458 F.3d 459, 471 & n.5 (6th Cir.) (noting that “an appellate waiver may not bar an
appeal asserting that the sentence exceeds the statutory maximum,” or a challenge
claiming that the sentence was “based on constitutionally impermissible criteria like
race”), cert. denied, 549 U.S. 1088 (2006). Thus, “[i]t is well settled in the federal
courts that a defendant who waives his right to appeal does not subject himself to being
sentenced entirely at the whim of the district court.” Caruthers, 458 F.3d at 471
(internal quotation marks omitted).
Consequently, although appeal rights are often stringently narrowed pursuant to
a defendant’s plea agreement, there nevertheless are some instances in which defendants
seeking an appeal are still entitled to their day in court. Thus, even where an appeal
appears frivolous, an attorney’s obligations to his or her client do not end at the moment
No. 11-3233 Campbell v. United States Page 7
the guilty plea is entered. Instead, the Supreme Court’s decision in Anders v. California,
386 U.S. 738 (1967), establishes a process through which the defendant can—with the
help of counsel—obtain the requested review, thereby ensuring that his constitutional
rights are intact; the court can efficiently dispose of claims that fall within the scope of
the waiver; and the government may, but is not required to, respond to the potential
issues on appeal. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007)
(addressing the duties attorneys owe to their clients with respect to the appellate phase
of a case involving an appeal waiver); Campusano v. United States, 442 F.3d 770, 774
(2d Cir. 2006) (Sotomayor, J.) (same). Thus, there is easily room for preserving both the
efficiency interests that plea agreements promote and the interest in ensuring that
defendants are not unfairly deprived of their chance at an appeal.
Our unpublished decision in Wright v. United States, 320 F. App’x 421 (6th Cir.
2009) (unpublished opinion), is not to the contrary. In Wright, this court extended the
principles set out in Ludwig and Flores-Ortega to a case that, like this one, involved a
plea agreement that contained a broad waiver of the right to appeal the defendant’s
conviction and sentence. Id. at 422. Despite the waiver, however, we determined that,
if counsel had ignored the defendant’s express instruction to file an appeal, such action
“amounts to ‘a per se violation of the Sixth Amendment,’” and thus, “regardless of the
merits of [the defendant’s] substantive claims,” he would be entitled to relief under
§ 2255 if the district court on remand determined that there was “an actual request for
an appeal.” Id. at 426 (quoting Ludwig, 162 F.3d at 459).
The same is true here. Moreover, this conclusion is in accord with the majority
of the circuits to have addressed the same question, all of which relied principally on
Flores-Ortega to find the answer. See Watson v. United States, 493 F.3d 960, 964
(8th Cir. 2007); United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007); Poindexter,
492 F.3d at 273; Campusano, 442 F.3d at 777; Gomez-Diaz v. United States, 433 F.3d
788, 793 (11th Cir. 2005); United States v. Sandoval-Lopez, 409 F.3d 1193, 1197
(9th Cir. 2005); United States v. Garrett, 402 F.3d 1262, 1267 (10th Cir. 2005). We find
the reasoning in these cases persuasive and now take this opportunity to join them.
No. 11-3233 Campbell v. United States Page 8
We are fully aware that two circuits have parted ways with the majority on this
issue. Predictably, rather than advocating the majority position, the government urges
us to follow the minority view. See Nunez v. United States, 546 F.3d 450, 456
(7th Cir. 2008) (holding that once a defendant has validly waived his appellate rights,
absent a non-frivolous issue that could be raised on appeal, “counsel should protect the
client’s interest in retaining the benefit of the plea bargain,” even if it means ignoring a
client’s express instruction to appeal); United States v. Mabry, 536 F.3d 231, 241, 242
(3d Cir. 2008) (concluding that where an attorney fails to file a notice of appeal as
directed after the defendant waived his appellate rights in a plea agreement, waiver is the
“threshold issue,” holding that a defendant cannot bring an ineffective-assistance claim
under Flores-Ortega “unless the waiver fails to pass muster under an entirely different
test: one that examines its knowing and voluntary nature and asks whether its
enforcement would work a miscarriage of justice”), cert. denied, 129 S. Ct. 2789 (2009).
For the reasons discussed above, we decline to do so. Instead, we believe that the
outcome reached by the majority of the circuits and by our unpublished opinion in
Wright is the more faithful application of both Supreme Court and Sixth Circuit
precedent. Moreover, although Nunez in particular is largely grounded on a desire to
protect the defendant from losing the benefit of a plea bargain, we do not agree that even
that motive justifies the denial of reasonably effective counsel on appeal if the defendant
chooses that course. Analogously, it is a defendant’s prerogative to take the stand, enter
a guilty plea, or waive a jury trial, even if counsel advises against those actions.
See Model Rules of Prof’l Conduct R. 1.2(a) (1983). The same principle applies to the
defendant’s decision to pursue an appeal, even if that right has been severely limited and
the outlook on the merits is bleak. As the Second Circuit noted:
Admittedly, applying the Flores-Ortega presumption to
post-waiver situations will bestow on most defendants nothing more than
an opportunity to lose. There will not be many cases in which a
defendant whose attorney fails to file a notice of appeal after a plea
agreement and a waiver of appeal, and whose hypothetical appeal seems
meritless during ineffective-assistance habeas review, eventually
prevails. But rare as they might be, such cases are not inconceivable, and
we do not cut corners when Sixth Amendment rights are at stake.
No. 11-3233 Campbell v. United States Page 9
Campusano, 442 F.3d at 777. Nor, in light of the Anders procedure described above, do
we find the efficiencies that result from first evaluating waiver as advocated in Mabry
to be persuasive. We therefore hold that even when a defendant waives all or most of
his right to appeal, an attorney who fails to file an appeal that a criminal defendant
explicitly requests has, as a matter of law, provided ineffective assistance of counsel that
entitles the defendant to relief in the form of a delayed appeal.
The final issue to be addressed is the appropriate course on remand. Although
nothing in the record contradicts Campbell’s assertion that he affirmatively expressed
to counsel his desire for an appeal, the government has not conceded the point. Because
the resolution of this factual issue is pivotal to Campbell’s claim for relief, the district
court must conduct an evidentiary hearing to determine if Campbell in fact expressed the
desire for an appeal as he now asserts. See Arredondo, 178 F.3d at 782 (requiring a plea
hearing unless “the record conclusively shows that the petitioner is entitled to no relief”
(internal quotation marks omitted)); see also Watson, 493 F.3d at 964; Tapp, 491 F.3d
at 266; Poindexter, 492 F.3d at 273; Campusano, 442 F.3d at 777; Gomez-Diaz,
433 F.3d at 792; Sandoval-Lopez, 409 F.3d at 1198; Garrett, 402 F.3d at 1267;
Wright, 320 F. App’x at 426.4
III. CONCLUSION
We recognize that, in light of the appeal waiver, the scope of the issues still
appealable in this case is quite limited. Campbell’s prospect of success on the merits is
even more limited. Nevertheless, prevailing precedent from the Supreme Court, the
Sixth Circuit, and the majority of our sister circuits mandates that even under these
circumstances, a defendant is entitled to counsel who will follow through on express
instructions to proceed with an appeal, no matter what the ultimate odds of success.
Accordingly, we VACATE the district court’s judgment and REMAND the case for an
evidentiary hearing to determine whether Campbell directed his attorney to file a notice
4
We granted Campbell a certificate of appealability only with respect to the issues related to
“whether counsel must file an appeal when requested, even where the defendant has waived all or some
of his appellate rights.” Campbell, No. 11-3233, order at 3. We therefore do not address the remaining
issues raised in Campbell’s brief, all of which fall outside the scope of the certificate of appealability.
No. 11-3233 Campbell v. United States Page 10
of appeal on his behalf. If the district court finds that Campbell did so, his attorney’s
failure to file an appeal constituted ineffective assistance of counsel, and Campbell is
entitled to file a delayed appeal. If, on the other hand, the district court determines that
Campbell provided no such instruction, Campbell is not entitled to any further relief.