8th Circuit Avoids Split Re Ineffective Assistance of Counsel When Petitioner Previously Waived Appeal Rights

Per Watson v. U.S., --- F.3d ----, 2007 WL 2049697 (8th Cir.(Mo.) Jul 18, 2007) (NO. 06-3104):

At oral argument, Watson's counsel approached the podium and announced that the government wished to make a statement. Government counsel then reported that it had recently become aware that its position ran counter to that of at least two circuits, which held that the failure of counsel to file a requested appeal amounted to ineffective assistance even if a petitioner had waived his appeal rights in a plea agreement. See Campusano v. United States, 442 F.3d 770, 775 (2d Cir.2006); United States v. Garrett, 402 F.3d 1262, 1267 (10th Cir.2005). Because it did not wish to urge a circuit split, the government conceded that the case should be remanded to the district court for an evidentiary hearing to determine whether Watson discussed the filing of an appeal with his attorneys.

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Watson claims that his counsel was ineffective in failing to honor his request to file a direct appeal. To prevail on an ineffective assistance of counsel claim, a petitioner generally must show that his counsel's performance "fell below an objective standard of reasonableness" and that he was prejudiced by this deficiency. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Where an attorney disregards specific instructions from a defendant to file a notice of appeal, he "acts in a manner that is professionally unreasonable." Flores-Ortega, 528 U.S. at 477. In such a case, prejudice is presumed because the defendant has forfeited his right to an appellate proceeding as a result of his counsel's error. Id. at 483-84. The court need not inquire into whether the intended appeal would be meritorious or likely to succeed. See Barger v. United States, 204 F.3d 1180, 1182 (8th Cir.2000).

The issue on appeal is whether the presumption of prejudice announced in Flores-Ortega applies where the petitioner has waived appellate rights as a part of a plea agreement. At the time this case was argued, the Second, Tenth, and Eleventh Circuits had all held that it does. See Campusano, 442 F.3d 770; Garrett, 402 F.3d 1262; Gomez-Diaz v. United States, 433 F.3d 789 (11th Cir.2005). The Fourth and Fifth Circuits recently joined them in that conclusion. See United States v. Poindexter, 05-7635/7636, 2007 U.S.App. LEXIS 15360 (4th Cir. June 28, 2007); United States v. Tapp, 05-30222, 2007 U.S.App. LEXIS 15343 (5th Cir. June 28, 2007). This view is most consistent with the Supreme Court's holding in Flores-Ortega that a defendant is prejudiced by the forfeiture of an appeal regardless of its apparent merit.