United States v. Embree

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6256
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERNIE EMBREE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James P. Jones, Chief District
Judge. (CR-01-2; CA-03-445-7)
Submitted: January 31, 2006 Decided: March 1, 2006
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Ernie Embree, Appellant Pro Se. Randy Ramseyer, United States
Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ernie Embree appeals from the district court’s order
denying relief on his motion filed under 28 U.S.C. § 2255 (2000).
We previously granted a certificate of appealability as to Embree’s
claim that his attorney provided ineffective assistance with
respect to filing a notice of appeal.* After receiving additional
briefing on this issue, we now vacate the district court’s order
and remand for further proceedings.
Embree asserted that he attempted to contact counsel
about an appeal but was unable to do so. Counsel responded that
Embree never contacted him concerning an appeal. The district
court denied the § 2255 motion, relying on Embree’s waiver in his
plea agreement of the right to file a § 2255 motion. The court
also denied relief on the merits, finding that Embree failed to
show that counsel’s performance was deficient under Strickland v.
Washington, 466 U.S. 668, 688-89, 694 (1984), because he did not
state that he wanted to appeal and did not inform counsel of this
desire.
We have recently upheld the validity in a plea agreement
of the waiver of collateral review, applying the same reasoning and
standards as are applied to waivers of the right to appeal. United
States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). The court
*
We denied a certificate of appealability and dismissed
Embree’s appeal as to his remaining issues.
- 2 -
in Lemaster specifically noted that Lemaster did not assert any of
the recognized exceptions to appeal waivers, but opined that the
same exceptions would apply to waivers of collateral review. Id.at 220 n.2.
Here, Embree has asserted that counsel’s “deficiency
deprived [him] of the appellate proceeding altogether.” Roe v.
Flores-Ortega, 528 U.S. 470, 483 (2000). This claim is analogous
to the claim asserted in United States v. Attar, 38 F.3d 727,
732-33 (4th Cir. 1994), where we held that the waiver of the right
to appeal did not bar a claim concerning a complete lack of counsel
during sentencing proceedings. Applying this exception to the
waiver, we conclude that Embree’s waiver of his right to
collaterally attack his sentence, coupled with his express
reservation of the right to file a direct appeal, does not bar his
claim that his attorney failed to consult him concerning an appeal.
See United States v. Garrett, 402 F.3d 1262 (10th Cir. 2005)
(strictly construing language of waiver to not preclude claim of
counsel’s ineffectiveness for failing to note appeal); United
States v. Gomez-Diaz, F.3d , 2005 WL 3465538 (11th Cir.
2005) (holding that waiver did not preclude claim that counsel
failed to consult regarding appeal).
An attorney who fails to file an appeal after being
instructed by his client to do so is per se ineffective. Flores-
Ortega, 528 U.S. at 477. When, however, a client does not clearly
- 3 -
convey his wishes about an appeal to counsel, the determination as
to whether counsel has been ineffective by failing to appeal
depends upon “whether counsel in fact consulted with the defendant
about an appeal.” Id. at 478. Where, as here, the claim is that
counsel has not consulted with his client, the court must then
determine whether the failure to consult itself constitutes
deficient performance. Id. If the court concludes that counsel’s
failure to consult amounted to deficient performance, the defendant
also “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.” Id. at 484.
In the instant case, Embree states that he attempted to,
but was unable to contact counsel about an appeal. The district
court denied relief, reasoning that Embree never asked counsel to
note an appeal. However, the district court did not consider
whether, in this case, counsel had a “constitutionally imposed duty
to consult” with Embree about an appeal, and if so, whether there
is a reasonable probability that Embree would have timely appealed,
but for counsel’s failure to so consult. Id. at 480, 484.
Because the district court did not apply this standard,
we vacate the district court’s opinion as to this issue and remand
to the district court for a consideration of whether counsel’s
failure to consult with Embree about an appeal amounted to
ineffective assistance. We deny Embree’s motion for appointment of
- 4 -
counsel on appeal and dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
VACATED AND REMANDED
- 5 -