Failure to File NOA Is IAC Regardless of Appeal's Merits

U.S. v. Guerrero, 2007 WL 1705087 (6/14/07)(published) - The 10th overturns a dismissal of a 2255 motion without an evidentiary hearing. The d.ct. was wrong to deny the claim that counsel did not file a notice of appeal as requested on the ground that the defendant suggested no meritorious appellate claims. Counsel is ineffective when counsel fails to file a notice of appeal when the defendant requests counsel to do so, even if the defendant's appeal is frivolous and the defendant has waived the right to appeal in the plea agreement. The defendant's unverified memorandum raising the ineffective assistance ("IA") claim did not comply with Rule 2(b)'s requirement of a signature under penalty of perjury. The 10th ordered the d.ct. to allow the defendant to file an amended properly-verified motion containing that claim and then to hold an evidentiary hearing on the IA claim.