United States v. Edgerton , 282 F. App'x 287 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6395
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHESTER EDGERTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:03-cr-00301-BO)
Argued: May 13, 2008 Decided: June 27, 2008
Before TRAXLER and GREGORY, Circuit Judges, and Alexander
WILLIAMS, Jr., United States District Judge for the District of
Maryland, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Lewis Alston Thompson, III, BANZET, THOMPSON & STYERS,
PLLC, Warrenton, North Carolina, for Appellant. Anne Margaret
Hayes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: George E. B. Holding, United
States Attorney, Steve R. Matheny, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Chester Edgerton appeals the district court’s denial of his
28 U.S.C. § 2255 motion to vacate based on his attorney’s
failure to file an appeal on his behalf. Because Edgerton has
not shown that a rational defendant in his circumstance would
have wanted to appeal or “reasonably demonstrated” that he
expressed interest in appealing, we must affirm.
I.
On December 1, 2003, Edgerton pled guilty to possession
with intent to distribute more than 50 grams of cocaine base,
cocaine and marijuana, in violation of 21 U.S.C. § 841(a)(1);
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924; using, carrying and possessing a
firearm during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A); and, maintaining a place
for the purpose of manufacturing, distributing or using a
controlled substance, in violation of 21 U.S.C. § 856(a). On
May 4, 2004, Edgerton was sentenced, without a plea agreement,
to a 352-month term of imprisonment. He did not appeal.
Edgerton claims, however, that he requested his attorney,
Mark Edwards, to file an appeal. When no appeal was filed,
Edgerton filed a motion to vacate pursuant to 28 U.S.C. § 2255,
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alleging that Edwards failed to file a notice of appeal despite
his request to do so. An evidentiary hearing was held where
Edgerton was represented by new counsel.
At the evidentiary hearing, Edgerton testified that while
he was in the Franklin County Jail following his sentencing, he
phoned Edwards and requested an appeal. Edgerton testified that
Edwards “said he would look into it.” (J.A. 53.) Edgerton
could not recall when this phone call was made - only that he
was in the Franklin County Jail “for something over a month.”
(J.A. 52.) Prior to this phone conversation, Edgerton had not
discussed his appellate rights or “any grounds or possible
appeal issues.” (J.A. 53.)
To the contrary, Edwards testified that he did not recall
ever talking to Edgerton after he was sentenced, and he had no
recollection of ever talking to Edgerton about the advisability
of an appeal.1 (J.A. 46-47.) More specifically, Edwards
testified that he did not recall having a telephone conversation
with Edgerton about his appeal. (J.A. 55.)
Edwards also testified that when a client specifically asks
him to file an appeal, he does so. He even goes so far as to
1
Edwards also noted that his recollection was unclear
because his Edgerton records were maintained on a computer
software program that was no longer working. (J.A. 47.)
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file Anders2 briefs on behalf of clients. Further, Edwards
stated that had there been discussions regarding an appeal, he
would have advised Edgerton to not seek an appeal because there
were “no grounds to pursue” and an appeal could “kill any chance
Edgerton might have [had] of coming back on a Rule 35” motion.
According to Edwards, Edgerton expressed an interest in
cooperating with authorities as his sentencing date approached
in the hopes of obtaining a reduced sentence.
In addition, Edwards vaguely remembered Edgerton being
offered a written plea agreement, which he did not sign.
Edwards testified that the proposed plea likely contained an
appeal waiver provision as that was the policy of the United
States Attorney Office at the time. (J.A. 44-45.) After hearing
this conflicting testimony, the district court found Edwards’s
testimony credible and dismissed Edgerton’s claim.
II.
Edgerton argues that the district court erred in dismissing
his § 2255 motion. He contends that Edwards disregarded his
request to file a notice of appeal and, therefore, was
ineffective as counsel. In response, the government contends
2
Anders v. California, 386 U.S. 738 (1967).
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that there is no evidence, other than Edgerton’s own speculative
recollections, that a discussion took place between Edgerton and
Edwards concerning an appeal.
“When reviewing an appeal from the denial of a § 2255
motion, we review de novo the district court’s legal
conclusions.” United States v. Poindexter, 492 F.3d 263, 267
(4th Cir. 2007) (citing United States v. Nicholson, 475 F.3d
241, 248 (4th Cir. 2007)). The district court’s factual
findings are reviewed for clear error. See Mickens v. Taylor,
240 F.3d 348, 360 (4th Cir. 2001). The Supreme Court has long
recognized that under the Sixth Amendment the right to counsel
includes “the right to effective assistance of counsel.” U.S.
Const. amend. VI.; see also McMann v. Richardson, 397 U.S. 759,
771 n.14 (1970). In order to establish a Sixth Amendment
violation based on counsel’s failure to appeal, Edgerton must
prove that (1) counsel was ineffective and (2) but for counsel’s
ineffectiveness, an appeal would have been filed. See Roe v.
Flores-Ortega, 528 U.S. 470 (2000). While the Constitution does
not give a criminal defendant the right to appeal as a matter of
right, the United States Code, 18 U.S.C. § 3742, does. Thus, an
attorney’s failure to file an appeal after being instructed by
his client to do so is per se ineffective. Flores-Ortega, 492
F.3d at 483.
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In Flores-Ortega, the Supreme Court held that “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 nonfrivolous grounds for appeal), or (2) that this
particular defendant reasonably demonstrated to counsel that he
was interested in appealing.” Id. at 480. In making this
determination, we must “take into account all the information
counsel knew or should have known” and consider “whether the
defendant received the sentence bargained for as part of the
plea and whether the plea expressly reserved or waived some or
all appeal rights.” Id. A presumption of prejudice also
applies, even if a defendant did not instruct his attorney to
file an appeal, when the defendant can show, had he received
reasonable advice from his attorney, that he would have
instructed his attorney to file a timely notice of appeal. Id.
at 486. Whether a defendant meets this standard turns on the
specific facts of each case. Id.
As noted above, Edgerton maintains that he telephoned
Edwards after his sentencing and requested that he file an
appeal. The district court found, based on Edwards’s testimony,
that Edgerton did not unequivocally instruct Edwards to file a
timely notice of appeal. Given Edgerton’s sparse and non-
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specific recollections, the district court’s credibility finding
is not clearly erroneous.
Notwithstanding this, Edgerton contends that Edwards,
nevertheless, was ineffective because he failed to consult with
him regarding an appeal. See United States v. Witherspoon, 231
F.3d 923 (4th Cir. 2000). He points out that not only does he
not recall Edwards advising him of his appeal rights but that
Edwards similarly testified to not recalling having a
conversation with him. Further, Edgerton argues that he had a
rational basis for filing an appeal and was prejudiced by
Edwards’s failure to do so; that is, (1) he allegedly rejected a
plea agreement with the Government to preserve his right to
appeal, and (2) had an appeal been filed, his sentence could
have been reviewed in light of Blakley v. Washington3 and United
States v. Booker.4 Thus, the salient issue is “whether the
failure to consult itself constitutes deficient performance.”
Flores-Ortega, 528 U.S. at 478.
The Supreme Court has rejected a bright-line rule requiring
counsel to always consult with a defendant regarding an appeal.
Flores-Ortega, 528 U.S. at 480. Proffering an example similar
3
542 U.S. 296 (2004).
4
543 U.S. 220 (2005).
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to Edgerton’s case, the Supreme Court reasoned that when a
defendant does not express an interest in appealing and counsel
concludes that there are no nonfrivolous grounds for an appeal
“it would be difficult to say that counsel is ‘professionally
unreasonable’ as a constitutional matter, in not consulting with
a defendant regarding an appeal.” Id.Indeed, it is difficult in this case to say that Edwards’s
failure to consult with Edgerton was professionally
unreasonable. Under the Flores-Ortega standard, Edgerton has
not shown that a rational defendant in his circumstance would
have wanted to appeal or “reasonably demonstrated” that he
expressed an interest in appealing. While Edgerton argues that
he specifically turned down a plea agreement to appeal, he only
provides conjecture as evidence that such was his reasoning at
the time.
At the evidentiary hearing, Edgerton did not testify that
he rejected the plea agreement to preserve his appellate rights.
Coupled with Edwards’s uncertainty as to whether the plea
agreement actually contained an appeal waiver - Edgerton’s
argument, it “most likely contained an appeal waiver,” is
unpersuasive. A defendant who specifically rejects a plea
agreement for the purpose of protecting his appellate rights
would know whether the agreement actually contained a waiver.
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Further, Edgerton fails to even articulate a ground he
would have raised on appeal. Although a defendant need not
prove his “hypothetical appeal might have had merit,” a
hypothetical ground for appeal is highly relevant to determining
whether Edgerton has been prejudiced or even expressed a desire
to appeal. Flores-Ortega, 528 U.S. at 485-486. Edgerton does,
however, posit that had an appeal been filed he may have reaped
the benefits of Blakely and Booker. While this maybe true, we
are confined to the information known or should have been known
to Edwards at the time.
At the time of Edgerton’s sentencing, Blakely was before
the Supreme Court but not yet decided and certiorari had not yet
been granted in Booker. Thus, it is purely speculative that he
would have “reaped the benefits” of these decisions. Under the
mandatory guidelines regime Edgerton was facing a significant
term of imprisonment. After he received a sentence at the
bottom of his guideline range, Edwards testified that the
defense strategy was to cooperate with the government in the
hopes of receiving a sentence reduction under Federal Rule of
Criminal Procedure 35(b). This was a reasonable strategy given
Edwards’s assessment that there were no other reasonable grounds
to pursue and Edgerton had expressed an interest in cooperating
with the government. Edwards also testified that had Edgerton
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expressed interest in appealing he would have advised him that
an appeal could have jeopardized his chance of receiving a Rule
35 sentence reduction.
We have held that an attorney must file a notice of appeal
when unequivocally instructed to do so by his client, even if
doing so would be contrary to a plea agreement and harmful to
the client’s interest. United States v. Poindexter, 492 F.3d
263, 273 (4th Cir. 2007). Despite Edwards’s concerns, he would
have still been required to file a notice of appeal - had
Edgerton unequivocally instructed him to do so. Because the
district court’s finding that Edgerton did not do so withstands
clear error review, we cannot hold that Edwards acted
“professionally unreasonable,” as a constitutional matter. And
while it is disconcerting that Edwards did not consult with
Edgerton regarding his appellate rights, there is no evidence
demonstrating Edgerton was prejudiced by the failure or had
anything to gain from appealing. The Supreme Court and this
Court recognizes that “the better practice is for counsel
routinely to consult with the defendant regarding the
possibility of an appeal.” Flores-Ortega, 528 U.S. at 479. But
it is not the standard and, thus, Edgerton’s claim fails.
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III.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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