No Appeal Advice Was ‘Ineffective Assistance’

A Harrisonburg U.S. District Court Magistrate Judge recommends granting defendant’s 28 U.S.C. § 2255 motion for post-conviction relief and vacatur of his sentence, to allow him to seek direct review of his conviction for drug conspiracy; defense counsel’s advice and discussions with defendant and his mother did not constitute a minimally adequate consultation sufficient to inform defendant of the advantages and disadvantages of an appeal, and defense counsel also failed to make a timely determination of whether defendant wanted to appeal.

Irrespective of whether defense counsel was in fact directed either by his client or his client’s mother to note an appeal, he was on notice that defendant-petitioner was considering and had some interest in an appeal.

With that notice, defense counsel had an affirmative duty to consult with defendant concerning the advantages and disadvantages of filing an appeal, even if it is debatable whether a rational defendant would want to pursue an appeal given the facts of this case. The evidence shows defense counsel failed to fulfill this duty to consult and to advise. Likewise, it shows he failed to fulfill his affirmative duty to consult and to make a timely determination whether his client did or did not want to appeal.

The court concludes defense counsel’s decision not to request a lesser included offense instruction was a strategic decision falling within the range of reasonable professional assistance, which cannot serve as the basis for post-conviction relief based on ineffective assistance of counsel.

U.S. v. Kelsey (Welsh) No. 5:09cr00025-1, Oct. 14, 2011; USDC at Harrisonburg, Va. VLW 011-3-569, 9 pp.