Consulting with Client Regarding Appeal is Mandatory, Even if Client Waived Appeal Rights

United States v. Herring, 2019 WL 4019905 (No. 18-4023, 10th Cir. Aug. 27, 2019). Even where a plea deal includes a waiver of appellate rights, the trial attorney needs to consult with the client about appeal and file a notice of appeal if the client wants it – otherwise ineffective assistance of counsel. SCOTUS defined “consult” as “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes.” Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000).

Pursuant to a plea agreement, Mr. Herring pled to one count of child porn. The plea agreement included a waiver of many of Herring’s appeal rights, except for his ability to appeal claims of ineffective assistance of counsel. After the hearing, Mr. Herring expressed interest in appealing; trial counsel told him he didn’t do appellate work and to consult with an appellate attorney. (The Tenth frowns on that: “Trial attorneys cannot outsource their constitutional obligation to advise their clients about filing an appeal nor their duty to make a reasonable effort to discover their clients’ wishes. Once the duty to consult is invoked by a defendant expressing interest in appealing, trial attorneys must properly advise their client and assess their client’s wishes before withdrawing from the case.”) Mr. Herring did not consult an appellate attorney and did not file an appeal but did file a habeas alleging IAC for no appeal.

The district court denied the petition without a hearing. The Tenth held this was an abuse of discretion because “The files and records of the case do not ‘conclusively show that the prisoner is entitled to no relief.’28 U.S.C. § 2255(b). That is the test, and under that test Herring is entitled to a hearing so that he may prove his factual allegations.”