United States v. Henson

FILED
United States Court of Appeals
Tenth Circuit
December 1, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-6018
(D.C. Nos. 5:14-CV-00404-F and
SHELLY RENEE HENSON, 5:12-CR-00194-F-1)
(W.D. of Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, HARTZ, and MORITZ, Circuit Judges. **
Shelly Henson appeals the district court’s denial of her motion under 28
U.S.C. § 2255 to vacate, set aside, or correct her sentence. She claims her plea
counsel was constitutionally ineffective in failing to consult with her about a
possible appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
I. Background
Henson defrauded prospective adoptive parents, adoption agencies, and
adoption law firms through an elaborate scheme that involved her feigning
pregnancy and offering the purported child for adoption. She pleaded guilty to
mail fraud. The district court sentenced her to sixty months in prison—well
above the twenty-one- to twenty-seven-month range suggested by the United
States Sentencing Guidelines. Henson did not appeal because counsel did not file
a notice of appeal within fourteen days of the entry of judgment. See Fed. R.
App. P. 4(b)(1)(A)(i).
Henson then brought this § 2255 petition, alleging ineffective assistance of
counsel. She claims that her attorney breached a constitutional duty by failing to
consult with her about appealing. After an evidentiary hearing, the district court
denied the petition. The court found that counsel had adequately consulted with
Henson through their mail correspondence.
II. Analysis
We review the district court’s legal determinations de novo and its factual
conclusions for clear error. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.
2001). To succeed on her claim for ineffective assistance of counsel, Henson
must show that her counsel’s performance was deficient and that the deficiency
prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
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In determining whether failure to file a notice of appeal is deficient, we
first consider whether the attorney “disregard[ed] specific instructions from the
defendant to file a notice of appeal.” Roe v. Flores-Ortega, 528 U.S. 470, 477
(2000). Failure to heed the defendant’s instruction to appeal is professionally
unreasonable. Id. But “a defendant who explicitly tells his attorney not to file an
appeal plainly cannot later complain that, by following his instructions, his
counsel performed deficiently.” Id.If the defendant “neither instructs counsel to file an appeal nor asks that an
appeal not be taken,” we then ask “whether counsel in fact consulted with the
defendant about an appeal.” Id. at 478. “Consult” has a “specific
meaning—advising the defendant about the advantages and disadvantages of
taking an appeal, and making a reasonable effort to discover the defendant’s
wishes.” Id. If counsel has consulted with the defendant, his performance is only
deficient if he fails to “follow the defendant’s express instructions with respect to
an appeal.” Id.Finally, if counsel has not consulted with the defendant, the question is
whether failure to consult is itself deficient performance. Id. Not every failure to
consult is constitutionally deficient. Id. at 479. Rather, the duty to consult exists
only “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)
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that this particular defendant reasonably demonstrated to counsel that he was
interested in appealing.” Id. at 480.
The district court convened an evidentiary hearing and took testimony from
Henson and her lawyer. It also relied on three letters exchanged between Henson
and counsel after Henson’s sentencing date of April 29, 2013 and before the
deadline for filing a notice of appeal, May 16, 2013. 1
At the hearing, Henson testified she was not advised as to the pros and cons
of an appeal, and that she wished to appeal. She believed her first letter to
counsel, received on May 2, 2013, instructed him to do so. In contrast, her
counsel testified that he spoke to Henson in person on the day of sentencing. He
recalled telling her at some point that even if she won an appeal, she would have
the same sentencing judge on remand.
As to the letters, in the May 2, 2013 letter Henson said she was upset about
her above-Guidelines sentence, particularly because her co-defendants received
less time. But she did not mention the possibility of appealing. Her counsel then
responded with a letter dated May 3, 2013, explaining that the sentence could
have been ten years instead of five because the judge found Henson’s conduct
considerably more egregious than that of her co-defendants. Finally, in a letter
received by counsel on May 7, 2013, Henson acknowledged that she was lucky
1
Judgment was entered on May 2, 2013.
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the sentence was not worse, that she felt remorse for her victims, and that she was
sorry for her previous letter. Once again, there was no mention of appeal.
The district court found that Henson had never instructed counsel to file an
appeal. The court also noted that the contents of the letters established “that the
defendant’s attitude toward the matter had progressed from anger to acceptance,”
R. Vol. 1, at 187, and that counsel had gleaned from the letters “an unmistakable
sense of acceptance and finality,” id. at 189. Counsel had reasonably believed
she had no interest in appealing because she knew she would see the same judge
on remand and would not likely receive a more favorable sentence.
Even if these exchanges do not show Henson explicitly instructed counsel
not to appeal, we agree with the district court that counsel adequately consulted
with her. As discussed above, counsel explained to Henson that an appeal would
likely be unsuccessful or futile because she would have the same judge on
remand. Coupled with counsel’s observation in his letters that Henson was lucky
to get only five years instead of ten, we find this a sufficient discussion of the
advantages and disadvantages of taking an appeal. And Henson’s ultimate
acceptance of her fate satisfied any duty counsel may have had to reasonably
ascertain her wishes. Because counsel adequately consulted with Henson and did
not disregard any express instructions on her part, his performance was not
deficient. Flores-Ortega, 528 U.S. at 478.
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III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s denial of
Henson’s § 2255 motion.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Chief Judge
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