Spence v. United States

ROGERS, Circuit Judge.

On April 4, 2000, Donald Spence was sentenced by the United States District Court for the Western District of Tennessee to 228 months in prison, followed by five years of supervised release. Spence did not pursue a direct appeal of his sentence. Spence now appeals the district court’s denial of his motion to set aside his sentence under 28 U.S.C. § 2255. Because the record does not show that Spence instructed his counsel to appeal, he has not established a Sixth Amendment violation. We, therefore, affirm.

FACTS

Donald Spence pleaded guilty to six counts of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); one count of possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and one count of being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). In connection with these crimes, Spence was sentenced to 228 months in prison and a five-year period of supervised release. Spence did not file a direct appeal.

On November 27, 2000, Spence filed a pro se motion to set aside his sentence under 28 U.S.C. § 2255, alleging, inter alia, that his counsel was ineffective in failing to file an appeal regarding Spence’s conviction and his sentence. The district court concluded that Spence failed to allege that he directed his attorney to file an appeal and that Spence’s Sixth Amendment rights were not, therefore, violated by his attorney’s failure to file an appeal. On February 8, 2002, we granted Spence a certificate of appealability to determine a single issue: “whether — in light of Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and Ludwig v. United States, 162 F.3d 456, 459 (6th Cir.1998)-the district court erred by denying Spence’s § 2255 motion.”

STANDARD OF REVIEW

“In reviewing a district court’s denial of a motion under Section 2255, we apply a clearly erroneous standard to its factual findings and review its conclusions of law de novo.” Hyatt v. United States, 207 F.3d 831, 832 (6th Cir.2000).

ANALYSIS

While Spence raised numerous challenges to his sentence, our inquiry examines only whether the failure of Spence’s attorney to file an appeal violated Spence’s rights under the Sixth Amendment. The now-familiar Strickland test requires that a defendant claiming ineffective assistance of counsel show (1) that counsel’s representation “fell below an effective standard of reasonableness” and (2) that counsel’s deficient performance prejudiced the defendant. Roe, 528 U.S. at 476-77; Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this standard, “a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable,” while a lawyer who does not file an appeal based on a defendant’s explicit instructions to forgo an appeal acts in a professionally reasonable manner. Roe, 528 U.S. at 477; see also Ludwig, 162 F.3d at 459 (holding that “the failure to perfect a direct appeal, in derogation of a defendant’s actual request, is a per se violation of the Sixth Amendment”). Where the defendant does not explicitly instruct an the attorney either way, an attorney “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 ... or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Id. at 480. If an attorney consults with the defendant, his performance will be professionally unreasonable only if the attorney fails to follow the defendant’s express instructions with respect to an appeal. Id. at 478. If the attorney failed to consult with the defendant, we must consider whether the attorney’s failure to advise the defendant constitutes deficient performance. Id.

Here, the district court concluded that Spence failed to allege that he had instructed his attorney to appeal. While the district court did not expressly consider whether Spence’s attorney discussed the possibility of an appeal with Spence, it is clear from the record that such a consultation occurred. Indeed, Spence repeatedly acknowledges that he and his attorney discussed the possibility of filing an appeal. See J.A. at 17, 22, 28, 40. Given that Spence’s attorney consulted with him regarding the possibility of an appeal, the attorney’s performance may be found professionally unreasonable only if the attorney failed to follow an express instruction from Spence to file an appeal. See Roe, 528 U.S. at 478. We agree with the district court that Spence did not allege that he expressly instructed his attorney to file an appeal, and we, therefore, affirm the district court’s denial of Spence’s motion.

As noted earlier, Spence proceeded pro se in this matter. Accordingly, we apply a less stringent standard to his petitions than we would apply to pleadings filed by a lawyer. Franklin v. Rose, 765 F.2d 82, 84-85 (6th Cir.1985) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). The lower standard “requires active interpretation ... to construe a pro se petition ‘to encompass any allegation stating federal relief;’ ” Id. (quoting White v. Wyrick, 530 F.2d 818, 819 (8th Cir.1976)). This standard, however, has limits and does not require the court to speculate about basic facts that could easily be alleged by the petitioner. See Erwin v. Edwards, No. 01-3387, 2001 WL 1556573, at *1, 22 Fed.Appx. 579 (6th Cir. Dec. 4, 2001) (unpublished); Wells v. Brown, 891 F.2d 591, 594 (6th Cir.1989) (“Neither [the Supreme] Court nor other courts ... have been willing to abrogate basic pleading essentials in pro se suits.”).

Despite the relaxed standard applied to pro se petitions, Spence’s motion fails. Nowhere in Spence’s motion or the accompanying memorandum of law does Spence allege that he instructed — much less expressly instructed — his attorney to file an appeal. At best, the statements cited by Spence demonstrate only discussions with his attorney regarding the possibility of an appeal.¹ Consequently, Spence’s attorney did not act in a professionally unreasonable manner by failing to file an appeal. The conduct of Spence’s attorney cannot, therefore, establish cause to excuse the procedural default of his claims.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of Spence’s motion.

1 . We cannot conclude that Spence had to have requested or expressed his desire to appeal from speculation that otherwise Spence’s attorney would have had no reason to consult with Spence about the prospects of a possible appeal. Spence's attorney may well have advised Spence about his appeal without a request because routinely advising clients regarding their appeal rights is good practice. See Roe, 528 U.S. at 479. Further, where the attorney has consulted with the defendant, "the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal.” Id. at 478 (emphasis added). Neither Spence’s § 2255 motion nor the memorandum in support alleges that Spence expressly instructed his attorney to appeal. Rather, the only such claim is stated in Spence’s reply brief on appeal, which comes too late.