U.S. v. Gipson ( 1993 )


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  •                                    United States Court of Appeals,
    Fifth Circuit.
    No. 91-6010.
    UNITED STATES of America, Plaintiff-Appellee,
    v.
    Ronnie GIPSON, Defendant-Appellant.
    March 8, 1993.
    Appeal from the United States District Court For the Southern District of Texas.
    Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
    EMILIO M. GARZA, Circuit Judge:
    Defendant, Ronnie Gipson, was convicted of conspiracy to pass a counterfeit United States
    Treasury check, passing a counterfeit Treasury check, and disposing of United States property
    without authority, in violation of 18 U.S.C. §§ 371, 472, 641 (1988). He was sentenced to three
    years imprisonment and one year probation. Gipson filed a pro se habeas motion to vacate, set aside
    or correct sentence, pursuant to 28 U.S.C. § 2255 (1988), contending, inter alia, that he was denied
    his Sixth Amendment right to effective assistance of counsel when his attorney failed to inform him
    of the time limit for filing an appeal. After conducting an evidentiary hearing, the district court denied
    Gipson's motion, finding that Gipson waived his right to appeal. Gipson appeals. Finding error, we
    vacate and remand.
    I
    Immediately after receiving the jury verdict on June 26, 1986, Gipson met with his trial
    attorney, Will Outlaw, to discuss the possibility of an appeal. Outlaw asked Gipson if he wanted to
    file an appeal, to which Gipson replied, "Yes." After returning to his home in Austin, Gipson called
    Outlaw, at which time Outlaw explained that he would need an additional $1500 to pursue the appeal.
    Gipson told Outlaw that he did not have the money then, but would try to get the money together.
    During these conversations, Outlaw did not inform Gipson of any filing deadlines.1
    During sentencing on September 4, the trial judge advised Gipson of his right to appeal and
    his right to have a court-appointed attorney if he could not afford to hire one. Gipson did not ask for
    an attorney to represent him, or inform the trial judge of his financial situation.2 Immediately after
    sentencing, Outlaw asked Gipson how he was coming along with getting his appeal money together.
    Gipson replied that he was "working on it" and would notify Outlaw as soon as he came up with the
    full amount. Neither Outlaw nor the trial judge informed Gipson that a notice of appeal had to be
    filed within 10 days of the date of entry of the judgment.3
    Approximately two weeks after sentencing, Gipson called Outlaw to tell him that he had come
    up with $700, and asked if partial payment would be acceptable. Outlaw replied that the entire
    amount was payable in advance, as Gipson had not as yet paid the entire trial fee. Judgment was
    entered on September 23, and amended on October 17. No notice of appeal was filed.
    On December 5, Gipson surrendered himself to the Federal Correctional Institute in Anthony,
    New Mexico. Gipson asserts that it was here that he first learned that his notice of appeal should
    have been filed within 10 days of entry of the judgment.
    Gipson filed an amended 28 U.S.C. § 2255 motion with the district court.4 Gipson argued
    1
    "In a criminal case the notice of appeal by a defendant shall be filed in the district court within
    10 days after the entry of (i) the judgment or order appealed from or (ii) a notice of appeal by the
    Government." Fed.R.App.P. 4(b).
    2
    Gipson testified at the evidentiary hearing that he believed that he had an indefinite amount of
    time in which to file an appeal, and that his attorney would handle the appeal once Gipson raised
    the entire $1500. See Record on Appeal, vol. 16, at 20, 22.
    3
    Fed.R.Crim.P. 32(a)(2) does not require courts to inform defendants of the time period in
    which to appeal. See 
    id. ("After imposing
    sentence in a case which has gone to trial on a plea of
    not guilty, the court shall advise the defendant of the defendant's right to appeal, including any
    right to appeal the sentence, and of the right of a person who is unable to pay the cost of an
    appeal to apply for leave to appeal in forma pauperis.").
    4
    Gipson did not appeal his conviction and sentence, but originally filed a pro se motion to
    vacate sentence with the district court, pursuant to 28 U.S.C. § 2255. In his § 2255 motion,
    Gipson alleged, inter alia, that ineffective assistance of counsel caused him to lose his right to
    appeal. Gipson also requested permission to file a delayed notice of appeal, claiming that his
    counsel never informed him of the time period for requesting an appeal. Before a hearing was
    held on his § 2255 motion, the district court granted Gipson's motion to file a delayed notice of
    appeal. A notice of appeal was thereafter filed with this Court, and Gipson moved to withdraw
    that his counsel's failure to inform him of time limits: (1) caused him to lose his right to appeal; and
    (2) constituted ineffective assistance of counsel. After conducting an evidentiary hearing, the district
    court denied Gipson's § 2255 motion, finding that Gipson was not denied his right to appeal due to
    his counsel's actions, but because Gipson "alone, failed t o affirmatively protect his right[ ] [to
    appeal]."5 Record on Appeal, vol. 1, at 408. Gipson appeals the denial of his motion, contending that
    his counsel's failure to inform him of the time period in which to file an appeal denied him effective
    assistance of counsel.
    II
    The single issue before us is whether Gipson was denied effective assistance of counsel by
    his counsel's failure to inform him of the ten-day deadline for filing a notice of appeal, which Gipson
    alleges caused him to lose his right to appeal. In reviewing a denial of a § 2255 motion for habeas
    relief, the district court's findings of fact must be accepted unless clearly erroneous. United States
    v. Casiano, 
    929 F.2d 1046
    , 1051 (5th Cir.1991) (citing Humphrey v. Lynaugh, 
    861 F.2d 875
    , 876
    (5th Cir.1988), cert. denied, 
    490 U.S. 1024
    , 
    109 S. Ct. 1755
    , 
    104 L. Ed. 2d 191
    (1989)). However,
    we review de novo questions of law. 
    Id. We examine
    claims of ineffective assistance of counsel to determine whether counsel's
    performance was both deficient and prejudicial to the petitioner. Strickland v. Washington, 
    466 U.S. 668
    , 692, 
    104 S. Ct. 2052
    , 2067, 
    80 L. Ed. 2d 674
    (1984). "To demonstrate deficiency, the petitioner
    must show that his counsel's actions "fell below an objective standard of reasonableness.' " United
    States v. Smith, 
    915 F.2d 959
    , 963 (5th Cir.1990) (quoting 
    Strickland, 466 U.S. at 688
    , 104 S.Ct.
    his § 2255 motion. We dismissed Gipson's appeal for lack of jurisdiction, stating that the district
    court had no authority to grant permission to file the delayed notice of appeal. The dismissal was
    ordered without prejudice to allow Gipson to refile his § 2255 motion.
    5
    The district court did not make a finding on Gipson's ineffective assistance of counsel claim.
    Rather, the court only decided Gipson's claim that he was denied his right to appeal because of his
    attorney's failure to inform him of the 10-day filing period. However, because the claims are so
    intertwined, we will address his ineffective assistance of counsel claim, rather than remand for a
    finding. See Dean v. Ford Motor Co., 
    885 F.2d 300
    , 308 (5th Cir.1989) (deciding, rather than
    remanding, claim not addressed by district court where claim was so intertwined with another
    claim upon which district court did make findings, that no need existed to remand for further
    proceedings).
    at 2064). In the context of the loss of appellate rights, prejudice occurs where a defendant relies upon
    his attorney's unprofessional errors, resulting in the denial of his right to appeal. See United States
    v. Green, 
    882 F.2d 999
    , 1003 (5th Cir.1989) (holding that prejudice occurs where failure to file
    notice of appeal results from defendant's reliance on counsel's error); United States v. Hilliard, 
    752 F.2d 578
    , 581 (11th Cir.1985) (holding that petitioner suffered no prejudice where counsel's failure
    to advise him of right to appeal did not result in him losing his right to appeal). If a petitioner can
    prove that the ineffective assistance of counsel denied him the right to appeal, then he need not
    further establish—as a prerequisite to habeas relief—that he had some chance of success on appeal.
    Thor v. United States, 
    574 F.2d 215
    , 221 (5th Cir.1978); see Childress v. Lynaugh, 
    842 F.2d 768
    ,
    772 (5th Cir.1988) ("Prejudice resulting from the denial of a defendant's right to appeal is presumed
    because a criminal conviction can be attacked on numerous grounds and thus, given the likelihood
    of prejudice, a case-by-case inquiry is not worth the cost.").
    In deciding an ineffectiveness claim, we "must judge the reasonableness of counsel's
    challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct."
    
    Strickland, 466 U.S. at 690
    , 104 S.Ct. at 2066. The following facts are undisputed. After receiving
    the jury verdict, Gipson notified Outlaw of his desire to appeal his conviction. See Record on Appeal,
    vol. 16, at 7. When Outlaw stated that he needed an additional $1500 to pursue his appeal, Gipson
    informed him that he would try and get the money together. See 
    id. at 8.
    After sentencing, but
    before judgment was entered, Gipson called his attorney to inquire whether partial payment would
    be sufficient. His attorney merely replied that he required full payment. See 
    id. at 10-11.
    At no time
    did Gipson's attorney (or the trial judge) notify Gipson that he had ten days to file an appeal after
    entry of the judgment. Judgment was subsequently entered, and no appeal was filed.
    Prevailing professional norms are relevant in determining whether an attorney's conduct was
    objectively reasonable. See 
    Strickland, 466 U.S. at 688
    , 104 S.Ct. at 2065. The ABA standards for
    criminal justice provide:
    Standard 4-8.2 Appeal
    (a) After conviction, the lawyer should explain to the defendant the meaning and
    consequences of the court's judgment and defendant's right of appeal....
    (b) The lawyer should take whatever steps are necessary to protect the defendant's right of
    appeal.
    ABA Standards Relating to the Administration of Criminal Justice, § 4-8.2 (2d ed. 1979). Under
    this standard, we conclude that counsel's failure to inform Gipson of the time limit for filing an appeal
    was objectively unreasonable.
    Time limitations can be a crucial element in a defendant's right of appeal. See Lamb v.
    Estelle, 
    667 F.2d 492
    , 496 (5th Cir.1982) ("[A]n indigent defendant is denied Sixth Amendment
    effective assistance of counsel when his court-appointed attorney fails to advise him of his right to
    appeal, of the procedure and time limits involved, and of his right to appointed counsel on appeal."
    (emphasis added) (citing Lumpkin v. Smith, 
    439 F.2d 1084
    (5th Cir.1971))); Martin v. State of
    Texas, 
    694 F.2d 423
    , 424-25 (5th Cir.1982) (citing Lumpkin ); Bonds v. Wainwright, 
    579 F.2d 317
    ,
    319 (5th Cir.1978) (citing Lumpkin ). Notifying a defendant of the time limit for filing an appeal
    becomes especially significant where, as here, counsel indicates his interest in representing a
    defendant on appeal, on the condition that defendant raise the required fee at some unspecified time
    in the future. Such a defendant may be misled into believing that his attorney will be able to file an
    appeal for an indefinite period of time. Under such circumstances, an attorney who does not inform
    a defendant of the applicable time limitations fails to take those "steps ... necessary to protect the
    defendant's right of appeal."
    As for the prejudice component, Gipson testified at the evidentiary hearing that had he known
    of the ten-day filing period, he would have stopped trying to raise Outlaw's required fee, and notified
    the trial court that he required a court-appointed attorney. See Record on Appeal, vol. 16, at 15.
    However, the government, relying on the district court's judgment, maintains that Gipson suffered
    no prejudice from Outlaw's error, because Gipson waived his right to appeal. The district court found
    that Gipson "alone, failed to affirmatively protect his ri ghts," Record on Appeal, vol. 1, at 408,
    because prior to the entry of the judgment, Gipson: (1) knew he had the right to appeal; (2) knew
    he had the right to an appointed-attorney if he could not afford to hire one; (3) knew he did not have
    Outlaw's required fee; (4) knew that Outlaw would not represent him for less than full payment; and
    yet (5) failed to inform the court of his financial situation or even his desire to file an appeal.6 See
    Record on Appeal, vol. 1, at 408-09.
    We ordinarily must accept a district court's finding of waiver unless it is clearly erroneous,
    as it constitutes a finding of fact. See Meeks v. Cabana, 
    845 F.2d 1319
    , 1323 (5th Cir.1988) ("The
    state court's finding of waiver ... involves a pure question of fact...."). However, we are not bound
    to accept the district court's finding of waiver if it was influenced by an incorrect view of the law.
    See Zimmerman v. H.E. Butt Grocery, Co., 
    932 F.2d 469
    , 471 (5th Cir.) ("On appeal, a trial court's
    findings of fact must be accepted unless clearly erroneous or influenced by an incorrect view of the
    law."), cert. denied, --- U.S. ----, 
    112 S. Ct. 591
    , 
    116 L. Ed. 2d 615
    (1991). In concluding that Gipson
    waived his right to appeal, the district court relied upon the following authority: (1) Mack v. Smith,
    
    659 F.2d 23
    (5th Cir.1981); and (2) Perez v. Wainwright, 
    640 F.2d 596
    (5th Cir.1981), cert. denied,
    
    456 U.S. 910
    , 
    102 S. Ct. 1759
    , 
    72 L. Ed. 2d 168
    (1982). See Record on Appeal, vol. 1, at 408-09.
    However, these cases do not provide the proper standard for determining whether a defendant has
    waived his right to appeal. Rather, they stand for the propositions that where counsel misleads the
    defendant to believe that notice was filed, see 
    Mack, 659 F.2d at 25
    , or counsel promises, but fails,
    to file a notice of appeal, see 
    Perez, 640 F.2d at 599
    , a defendant is entitled to an out-of-time appeal.
    Thus, the district court's finding of waiver was influenced by an incorrect view of the law.
    We decide, rather than remand, the question whether Gipson waived his right to appeal,
    because it is a question of law based upon the undisputed facts of this case. Waiver of the right to
    appeal "requires that there be knowledge of the right to appeal and a failure to make known the desire
    to exercise that right." See 
    Meeks, 845 F.2d at 1322
    (citing Norris v. Wainwright, 
    588 F.2d 130
    , 137
    (5th Cir.) ("A defendant properly informed of his appellate rights may not "let the matter rest,' and
    then claim that he did not waive his right to appeal." (citation omitted)), cert. denied, 
    444 U.S. 846
    ,
    
    100 S. Ct. 93
    , 
    62 L. Ed. 2d 60
    (1979)). Gipson was informed of his right to appeal at sentencing. See
    Record on Appeal, vol. 15, at 31-32. However, it cannot be said that he also failed to make known
    6
    The district court also found no evidence that Outlaw "told or hinted to the petitioner that he
    had an indefinite period of time to perfect an appeal." Record on Appeal, vol. 1, at 409.
    his desire to exercise that right, as he informed his attorney immediately after the jury verdict of his
    desire to appeal. See Record on Appeal, vol. 16, at 7; see also 
    Meeks, 845 F.2d at 1323
    (upholding
    finding of waiver where defendant failed to inform his attorney of his desire to appeal); Huff v.
    Wainwright, 
    583 F.2d 744
    , 745 (5th Cir.1978) (same), cert. denied, 
    440 U.S. 963
    , 
    99 S. Ct. 1508
    ,
    
    59 L. Ed. 2d 777
    (1979). Because the record clearly indicates that Gipson informed his attorney of
    his desire to appeal, we conclude that no waiver occurred.7 Therefore, Gipson satisfied the prejudice
    element of Strickland. See 
    Childress, 842 F.2d at 772
    .
    III
    For the foregoing reasons, we VACATE the judgment of the district court in denying Gipson's
    habeas motion, and REMAND for proceedings consistent with this opinion.
    7
    We do not mean to suggest that a waiver can never exist where a defendant requests that his
    attorney file an appeal. For example, we have held that waiver can occur even if a defendant
    requests that his attorney file an appeal, and no appeal is filed, where the defendant does not rely
    on any error by counsel in losing the right to appeal. See 
    Green, 882 F.2d at 1003
    . The instant
    case is distinguishable because here Gipson lost his right to appeal due to his attorney's error.