Académique Documents
Professionnel Documents
Culture Documents
No. 10-6807
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.
James P. Jones, District
Judge. (1:08-cv-80114-JPJ-MFU; 1:07-cr-00037-JPJ-MFU-1)
Submitted:
Decided:
PER CURIAM:
Lonnie Edward Malone appeals from the denial of his 28
U.S.C.A. 2255 (West Supp. 2011) motion.
We previously granted
received
ineffective
assistance
of
counsel
when
his
appealing,
but
his
about an appeal.
and
until
never
spoke
with
him
personally
daughter-in-law
received
attorney
and
after
wrote
the
Malone
appeal
letter
period
had
that
was
expired.
not
In
meeting with Malones son and in his letter, the attorney stated
he would not file a notice of appeal and that Malone would
likely receive a longer sentence if he appealed.
In reviewing the denial of a 2255 motion, we review
the district courts legal conclusions de novo and its factual
findings for clear error.
as
the
issue
constitutionally
of
whether
adequate,
are
lawyers
reviewed
de
performance
novo.
was
United
of
order
to
counsel,
performance
succeed
a
on
defendant
fell
below
2
claim
must
an
of
show:
objective
ineffective
(1)
that
standard
his
of
Strickland
In
United
we
v.
Washington,
States
held
that
466
U.S.
v.
Peak,
992
the
Sixth
Amendment
668,
F.2d
687
39,
41
obligates
to
note
an
appeal
upon
timely
request
constitutes
Id. at 42.
A waiver of appellate
United
States v.
492
Poindexter,
Moreover,
even
if
the
F.3d
263,
defendant
271-73
fails
to
with
the
circumstances.
defendant
about
an
appeal
under
certain
when
there
is
reason
to
think
either
(1)
that
Id. at 480.
Consulting entails
Case, 527 F.3d 174, 175-76 (D.C. Cir. 2008) (noting that, after
3
to
consult
was
deficient,
the
prisoner
must
also
Flores-Ortega, 528
U.S. at 484.
probability
reasonable
failure
to
consult
timely appealed.
In
his
with
that,
him
but
about
for
an
counsels
appeal,
he
deficient
would
have
Id.
opening
brief,
Malone
did
not
contest
the
after
In
his
reply
sentencing
brief,
were
Malone
sufficient
claims
to
that
his
require
his
claim is raised for the first time in his reply brief, Malone
has waived consideration.
(4th Cir. 2001).
While it is
U.S.
at
480.
Malone
told
his
daughter-in-law
desire to appeal.
these
requests
both
spoke
Flores-Ortega,
attorney
directly
after
with
counsel
about
Malones
adequately
demonstrated
Malones
interest
in
was
to
the
question
adequate,
the
of
district
whether
court
counsels
concluded
that
drafting
letter
that
was
not
received
prior
to
the
members
that
Government
seeking
acceptance
of
filing
an
an
enhanced
responsibility
appeal
could
sentence
adjustment.
5
result
by
in
the
removing
his
While
the
plea
the
district
court
concluded
that,
advice
was
sufficient.
Pursuant
to
the
plea
not waive the right to bring any and all appeals; an appeal
waiver
cannot
waive
certain
fundamental
claims.
See
United
Thus, the
of
notice
of
appeal
on
any
grounds
whatsoever
was
As
Malone,
did
not
adequately
advise
Malone
of
all
the
that
he
behalf.
would
Counsel
not
file
refused
to
notice
of
represent
appeal
Malone
on
on
Malones
appeal
and
That
sufficient,
he
made
no
effort
to
determine
whether
Given
counsels
unreasonable.
Malones
failure
to
repeated
inquiries
ascertain
Malones
regarding
decision
an
was
to
provide
proper
incompletely
consulation
advised
Malone
in
that
incorrectly
and
the
advantages
and
regarding
he
the
prejudice
prong,
the
district
court
another
information
attorney.
to
Moreover,
counsel
provided
family
members,
which
Malones
incorrect
may
have
It is undisputed that
his
son
to
find
out
about
an
appeal,
and
that
Malone
implicitly
Malone
concluded
that,
subsequently,
8
must
have
We
hold that Malone has made a sufficient showing that, had his
attorney
properly
consulted
with
him,
he
would
have
filed
696, 712 (4th Cir. 2005) (finding that Frazers unwavering and
ongoing interest in an appeal, coupled with his tenacity in
pursuing
habeas
relief,
adequately
satisfied
the
prejudice
prong).
Accordingly, we reverse the district courts denial of
Malones 2255 motion, vacate his sentence, and remand the case
for reentry of that sentence, so that Malone may have a second
chance
to
seek
direct
judicial notice.
facts
and
materials
legal
before
review.
We
deny
Malones
motion
for
court
are
adequately
and
argument
presented
would
not
in
the
aid
the
decisional process.
REVERSED