United States v. Alston ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-7349
STEVE ALSTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CR-93-144-BO, CA-95-437-5-BO)
Submitted: March 26, 1996
Decided: June 28, 1996
Before HALL, ERVIN, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
Steve Alston, Appellant Pro Se. David Paul Folmar, Jr., Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
The Appellant, Steve Alston, appeals the district court's denial of
his 28 U.S.C. § 2255 (1988) motion to vacate, set aside, or correct his
sentence. Alston claims that the Government breached the plea agree-
ment, that his presentence report contained errors, and that his counsel
failed to note an appeal and object to the presentence report as
instructed. Finding that Alston makes a colorable claim of ineffective
assistance of counsel,1 we vacate and remand in part.
Pursuant to a plea agreement, Alston pled guilty to using a commu-
nication facility to facilitate drug trafficking, 2 and the district court
sentenced Alston to sixty months incarceration with three years of
supervised release. In his plea agreement, Alston waived his right to
appeal his conviction or sentence,3 but reserved the right to appeal for
ineffective assistance of counsel or prosecutorial misconduct not
known to him at the time of his guilty plea. In his§ 2255 motion, Als-
ton never contends that the plea agreement or the waiver of appellate
rights was unknowing or involuntary; consequently, Alston's plea
agreement, including the waiver provision, are upheld as an intelli-
gent and informed decision.4
Although Alston partially waived his appellate rights, he claims in
his § 2255 motion that counsel was ineffective because counsel failed
to note an appeal after he was allegedly so instructed by Alston.
While "a collateral challenge may not do service for an appeal,"5 this
court has said "that a criminal defense attorney's failure to file a
notice of appeal when requested by his client deprives the defendant
of his Sixth Amendment right to the assistance of counsel, notwith-
standing that the lost appeal may not have had a reasonable probabil-
_________________________________________________________________
1 Becton v. Barrnett, 920 F.2d 1190, 1195 (4th Cir. 1990).
2 18 U.S.C. § 1952 (1988).
3 United States v. Wiggins, 905 F.2d 51 (4th Cir. 1990).
4 North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v. Alabama,
395 U.S. 238, 242 (1969).
5 United States v. Frady, 456 U.S. 152, 165 (1982).
2
ity of success."6 We find Peak dispositive because Alston did not
waive all of his appellate rights.7 Alston reserved his right to appeal
based upon ineffective assistance of counsel and prosecutorial mis-
conduct, and he could have challenged whether the waiver of rights
provision was enforceable. Further, while the likelihood that Alston
could meet the burden of proving ineffective assistance or prosecu-
torial misconduct is small, Peak eliminates the need for Alston to
show actual prejudice.8 If counsel failed to note an appeal as alleged,
then Alston was completely deprived of assistance of counsel on
direct appeal and relief is warranted.
Finally, Alston's remaining claims are without merit. Alston's
assertion that the Government breached the plea agreement because
he did not receive a three-point reduction in his base offense level for
acceptance of responsibility is without merit.9 Alston did in fact
receive a three-point reduction. Likewise, Alston's claim of errors in
his presentence report is without merit. Alston was aware of the
alleged errors at sentencing, but he failed to object. Consequently,
Alston's waiver of appellate rights in his plea agreement bars him
from raising this claim.
Accordingly, we affirm the district court on Alston's claims that
there was a breach of the plea agreement and that there were errors
in his presentence report, but because Alston's claim that he requested
his attorney to note an appeal was not directly refuted by his attorney,
nor did the district court determine whether Alston had in fact
requested his attorney to note an appeal, we remand this claim for
appropriate findings. If Alston did in fact request counsel to note an
appeal, he should be allowed to file one as Peak dictates. We dispense
with oral argument because the facts and legal contentions are
_________________________________________________________________
6 United States v. Peak, 992 F.2d 39, 41-42 (4th Cir. 1993).
7 Cf. United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (attorney
cannot be deficient for failing to raise claims when defendant knowingly
and voluntarily waived all appellate and post-conviction relief).
8 Peak, 992 F.2d at 42.
9 United States Sentencing Commission, Guidelines Manual,
§ 3E1.1(b) (Nov. 1993).
3
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
4