United States v. Eric Clancy

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 22-1032, 22-1033
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UNITED STATES OF AMERICA
v.
ERIC CLANCY
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Nos. 2-17-cr-00031-001, 2-19-cv-0004)
District Judge: Honorable Mark R. Hornak
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on October 18, 2022
Before: GREENAWAY, JR., MATEY and ROTH, Circuit Judges
(Filed: November 17, 2022)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
MATEY, Circuit Judge.
Eric Clancy appeals the denial of his motion claiming ineffective assistance of
counsel. Finding no error, we will affirm.
I.
Clancy pleaded guilty to narcotics and firearms offenses in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C), and 18 U.S.C. § 924(c)(1)(A)(i). Denying Clancy’s request
for a variance, the District Court sentenced Clancy to ninety months incarceration, a term
within the Advisory Guidelines’ range.
Clancy did not appeal, a decision he blames on his counsel Kenneth Haber. So he
filed a motion under 28 U.S.C. § 2255 to vacate his sentence alleging ineffective assistance.
The District Court held an evidentiary hearing on the motion, and Clancy and Haber
testified. Both told a similar story. Clancy testified that, after the District Court announced
his sentence, he asked Haber, “we’re appealing, right[?]” App. 249. Haber repeatedly
testified he did not hear that question. But he explained that, requested or not, he would
have filed a notice of appeal, or at least discussed the possibility with Clancy, if he thought
meritorious grounds existed. Finding Haber’s representation was not deficient, the District
Court denied the motion but certified two issues for appeal:
(1) whether counsel has—and in this case had—a constitutional duty to
consult with the Defendant regarding an appeal when the Defendant
‘reasonably demonstrates’ an interest in appealing but counsel does not know
or have reason to know of that interest; [and] (2) whether on the factual
record here, counsel nonetheless had a duty to make inquiry of the Defendant
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on the topic of an appeal regardless of whether counsel was aware of the
Defendant’s subjective interest in appealing.1
App. 34. Finding no error on either, we will affirm.2
II.
Ineffective assistance requires an objectively deficient performance that prejudiced
the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). When a defendant
claims counsel failed to file an appeal, “a defendant must demonstrate that there is a
reasonable probability that, but for counsel’s deficient failure to consult with him about an
appeal, he would have timely appealed.” Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000).
“[T]he prejudice inquiry we have described is not wholly dissimilar form the inquiry used
to determine whether counsel performed deficiently in the first place.” Id. at 486.
Nonetheless, the inquiries are distinct. “To prove deficient performance, a defendant can
rely on evidence that he sufficiently demonstrated to counsel his interest in an appeal. But
such evidence alone is insufficient to establish that, had the defendant received reasonable
advice from counsel about the appeal, he would have instructed his counsel to file an
1
The parties dispute the wording of the issues in the certificate of appealability. We
do not perceive the same ambiguity and, in any event, “the merits panel may expand the
certificate of appealability as required in the circumstances of a particular case.” 3d Cir.
L.A.R. 22.1(b). Accordingly, we consider whether Haber had a duty to discuss a possible
appeal with Clancy whether or not counsel was aware of Clancy’s interest.
2
The District Court had jurisdiction under 28 U.S.C. § 2255. We have jurisdiction
under 28 U.S.C. §§ 1291 and 2253. “In a [§ 2255] proceeding, we exercise plenary review
of the district court’s legal conclusions and apply a clearly erroneous standard to the court’s
factual findings.” United States v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014) (quoting
Lambert v. Blackwell, 134 F.3d 506, 512 (3d Cir. 1997)).
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appeal.” Id. As the District Court properly concluded, Clancy does not meet this
requirement.
To begin, the District Court found that Haber “didn’t hear Mr. Clancy,” and did not
“otherwise know of an interest on Mr. Clancy’s part in an appeal.” App. 21. These were
factual determinations reached after a full hearing that we will not disturb.
Nor did Haber have a duty to consult Clancy about a possible appeal given the
totality of the circumstances. Flores-Ortega, 528 U.S. at 480 (holding 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”). As the District
Court explained, Clancy’s sentence was at the lower end of the guidelines range, and his
plea agreement contained a broad appellate waiver. The above facts show that “a
reasonable lawyer in Mr. Haber’s shoes did not have reason to conclude that a rational
defendant in Mr. Clancy’s position would have wanted to appeal.” App. 29.
It is not enough to argue, as Clancy does, that Haber should have confirmed the
decision to forgo an appeal. His counsel discussed the plea agreement before sentencing,
and Clancy knew that he might not succeed on his motion for a variance. And the plea
agreement explained the Government could file an information establishing a prior
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conviction leading to a more significant sentence.3 On those facts, we cannot find error in
the District Court’s conclusions.
III.
For these reasons, we will affirm the District Court’s judgment.
3
The Government also stated, without objection, that it would file the information
after the plea hearing. Nor was this argument raised before the District Court.
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