Failure to Consult Re: Appeal Rights Results in 2255 Relief

U.S. v. Kelley, 2009 WL 806746 (3/30/09) (unpub'd) - A reversal of a 2255 denial. First, trial counsel had a duty to consult with the defendant about appealing, even though there was no reason to believe a rational defendant would want to appeal the within-Guidelines sentence. This is so because this particular defendant had reasonably demonstrated his interest in an appeal when he asked immediately after sentencing if counsel would "take care of everything," appeal was the only remaining legal matter and the defendant asked his sister the next day to see counsel in order to get started on the appeal, but the sister was unable to reach counsel. Second, counsel did not fulfill his duty to consult about the appeal when he simply said there was nothing to appeal. This did not constitute the informing of the advantages and disadvantages of appealing that counsel was required to engage in. Third, the defendant established the requisite prejudice by showing that had he been properly advised he would have wanted an appeal, as evidenced by his post-sentencing efforts to get counsel to appeal.