United States v. Matthews , 239 F. App'x 806 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6960
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DINARLDO MATTHEWS, a/k/a Kasheem Allah, a/k/a
Ki,
Defendant - Appellant.
No. 05-7532
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DINARLDO MATTHEWS,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (CR-00-213; CA-05-339)
Submitted: April 11, 2007 Decided: July 9, 2007
Before WILKINSON, KING, and GREGORY, Circuit Judges.
No. 05-6960, affirmed; No. 05-7532, vacated and remanded, by
unpublished per curiam opinion.
Dinarldo Matthews, Appellant Pro Se. Kevin Michael Comstock,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Dinarldo Matthews appeals the district court's order
denying relief on his 28 U.S.C. § 2255 (2000) motion (No. 05-7532),
and his motion for reconsideration under Fed. R. Civ. P. 60 (No.
05-6960).1 In No. 05-6960, we affirm the district court’s denial
of Matthews’ Fed. R. Civ. P. 60 motion for the reasons stated by
the district court. See United States v. Matthews, No. 2:00-cr-
00213 (E.D. Va. Apr. 13, 2005). We previously granted a
certificate of appealability in No. 05-7532 on a single claim of
ineffective assistance of counsel, in which Matthews alleged that
he was denied the right to a direct appeal when counsel failed to
comply with his request to file a notice of appeal. For the
reasons that follow, we now vacate the district court's order to
the extent that it denied relief on this claim and remand for
further proceedings.
Matthews pled guilty to one count of conspiracy to
distribute and possess with intent to distribute heroin and
cocaine, and was sentenced to 225 months' imprisonment. He did not
appeal. In his § 2255 motion, which was sworn and verified in
1
Matthews has filed a Motion for Clarification regarding the
court’s decision to consolidate these appeals. In that motion,
Matthews expresses concern that the court might apply the
certificate of appealability standard, 28 U.S.C. § 2253(c)(2)
(2000), to appeal No. 05-6960. We grant the Motion for
Clarification and explain that the court has not held the appeal in
No. 05-6960 to the certificate of appealability standard set forth
in § 2253(c)(2).
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compliance with 28 U.S.C. § 1746 (2000), Matthews claimed that
after the sentencing hearing he asked his counsel to file a notice
of appeal, and his attorney agreed to do so. Matthews's counsel,
however, stated in an affidavit filed by the Government that
Matthews never asked him to file an appeal.
In United States v. Peak, 992 F.2d 39, 41 (4th Cir.
1993), this court 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. Counsel who consults with the defendant
and fails to follow the defendant’s express instructions to appeal
performs in a professionally unreasonable manner. See Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000). Unless it is clear from
the pleadings, files, and records that the prisoner is not entitled
to relief, § 2255 makes an evidentiary hearing in open court
mandatory. 28 U.S.C. § 2255; Raines v. United States, 423 F.2d
526, 529 (4th Cir. 1970); United States v. Witherspoon, 231 F.3d
923, 925-27 (4th Cir. 2000).
In light of Matthews's claim, under penalty of perjury,
that counsel failed to honor his request to file an appeal, and
counsel's conflicting affidavit denying that Matthews asked him to
note an appeal, we conclude there is a genuine issue of material
fact concerning whether Matthews was denied effective assistance of
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counsel. Moreover, we disagree with the district court’s
conclusion that counsel is not obligated to file a requested notice
of appeal when a defendant waives his right to appeal pursuant to
a plea agreement. See Camposano v. United States, 442 F.3d 770,
771-72 (2d Cir. 2006); Gomez-Diaz v. United States, 433 F.3d 788,
793-94 (11th Cir. 2005); United States v. Garrett, 402 F.3d 1262,
1266-67 (10th Cir. 2005). Finally, because Matthews had ten days
in which to decide whether to appeal, Fed. R. App. P. 4(b), we
cannot agree with the district court’s conclusion that Matthews was
bound by his statement at sentencing that he did not plan to
appeal.
Accordingly, we vacate that portion of the district
court's order denying relief on this claim and remand for further
proceedings.2 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.
No. 05-6960 - AFFIRMED;
No. 05-7532 - VACATED AND REMANDED
2
By this disposition, we indicate no view as to the
appropriate outcome of the proceedings on remand.
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