Montemoino v. United States , 68 F.3d 416 ( 1995 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 94-4774
Non-Argument Calendar
________________________
D.C. Docket No. 94-37-CIV-KEHOE
91-742-CR-KEHOE
ROBERT MONTEMOINO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
_______________________
Appeal from the United States District Court
for the Southern District of Florida
_______________________
(October 20, 1995)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Robert Montemoino was convicted, based upon his guilty plea,
of conspiracy to possess with intent to distribute cocaine. He did
not appeal his conviction or sentence. Thereafter, Montemoino
filed a 28 U.S.C. § 2255 petition raising a large number of grounds
for relief. The district court denied that petition, and
Montemoino appeals.
The district court's denial of the petition was proper, except
in one respect. One of the grounds Montemoino raised in the
petition was that his attorney had rendered ineffective assistance
of counsel by failing to appeal his sentence. Montemoino alleged
in the petition that he had requested his attorney to file a notice
of appeal, but the attorney failed to do so. Nothing in the record
of the guilty plea proceeding or the record of the § 2255
proceeding contradicts Montemoino's allegation. The district court
did not hold a hearing on the petition.
This Court has long held that an attorney's failure to file an
appeal after the defendant requests him to do so entitles the
defendant to an out-of-time appeal, even without a showing that
there would have been any viable grounds for an appeal. See e.g.,
Gray v. United States, 834 F.2d 967, 967-68 (11th Cir. 1987); see
also Ferguson v. United States, 699 F.2d 1071, 1072-73 (11th Cir.
1983) (and cases cited therein). However, this Court has also held
that a different rule applies to guilty plea cases, because:
[t]he considerations . . . underlying an
acceptance of a guilty plea are quite
different from the considerations underlying a
defendant's decision to take a direct appeal
from a judgment of conviction. A guilty plea,
since it admits all the elements of a formal
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criminal charge, waives all non-jurisdictional
defects in the proceedings against a
defendant. Absent a jurisdictional defect, a
defendant usually has no right to appeal from
a plea of guilty.
Ferguson, 699 F.2d at 1073 (quoting Barrientos v. United States ,
668 F.2d 838, 842-43 (5th Cir. 1982) (citations omitted). Because
the few grounds upon which the guilty plea may be challenged are
not limited to direct appellate review, but instead are more
appropriately raised in § 2255 proceedings, an attorney's failure
to file a direct appeal from a guilty plea "does not constitute
ineffective assistance of counsel since it causes no harm to the
defendant." Ferguson, 699 F.2d at 1073.
At first blush, the Ferguson rule would appear to foreclose
Montemoino's claim that his attorney's failure to file an appeal
constituted ineffective assistance of counsel. However, Ferguson
is a pre-Sentencing Guidelines case. See U.S.S.G. ch.1, pt.A
(observing that the Sentencing Guidelines took effect November 1,
1987). Absent an express waiver of the right to appeal his
sentence, a defendant who pleads guilty and is sentenced under the
Guidelines has a right to direct appeal of his sentence. See
United States v. Bushert, 997 F.2d 1343 (11th Cir. 1993). Because
of that opportunity, a defendant has no right to raise Guidelines
sentencing issues in a § 2255 proceeding. See Cross v. United
States, 893 F.2d 1287, 1289 (11th Cir.), cert. denied, 498 U.S. 849
(1990) (holding that a petitioner may not litigate claims in a §
2255 proceeding that were not raised on direct appeal absent a
showing of both cause and actual prejudice). The reasoning that
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underlies the Ferguson rule in pre-Guidelines cases does not apply
insofar as sentencing issues in Guidelines cases are concerned,
because none of the Guidelines sentencing issues available to the
defendant are waived by the plea, unless there is an express waiver
of the right to appeal the sentence that complies with the
requirements of Bushert. There was none in this case.
Accordingly, if Montemoino requested his counsel to file an
appeal, and counsel failed to do so, Montemoino is entitled to an
out-of-time appeal on any sentencing issues. Such an appeal would
extend only to sentencing issues. The Ferguson rule is still
applicable insofar as guilt stage, or guilty plea validity, issues
are concerned, because those issues can be raised in a § 2255
proceeding. They were in this case, and the district court
properly rejected them on the merits.
We remand for an evidentiary hearing on Montemoino's
allegation that he requested his counsel to file a direct appeal.
If the district court finds that Montemoino did make such a
request, it should enter an order granting an out-of-time appeal
limited to sentencing issues.
AFFIRMED IN PART and REVERSED IN PART.
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