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THOMAS v. U.S.
October 24, 2005.
KIEFFER DWAYNE THOMAS PETITIONER
UNITED STATES OF AMERICA RESPONDENT.
The opinion of the court was delivered by: GEORGE HOWARD Jr., District Judge
On September 23, 2005, the Court conducted a hearing on
petitioner's § 2255 motion. In particular, the hearing was on
petitioner's assertion that his counsel failed to file a notice
of appeal after being instructed to do so by petitioner. At the
hearing, petitioner, his counsel at the time Herb Wright, and
Special Agent Crutchfield testified.
An attorney's failure to file a notice of appeal after his or
her client instructs counsel to do so constitutes ineffective
assistance entitling a petitioner to § 2255 relief, without any
inquiry into prejudice or likely success on appeal being
necessary. Barger v. United States, 204 F. 3d 1180, 1182
(8th Cir. 2000). "[T]he desire to appeal must be manifest. A
bare assertion by the petitioner that [h]e made a request is not
by itself sufficient to support a grant of relief, if evidence
that the fact-finder finds to be more credible indicates the
contrary proposition." Id. (citations omitted).
Petitioner stated that he instructed Wright to appeal in one
telephone conversation sometime soon after his sentencing on
December 17, 2003. He stated that he wanted to appeal the
imposition of a 188-month sentence based on prior convictions.
Petitioner stated that Wright informed him that there was no
ground for an appeal but that he would look into it. Wright testified that petitioner did not request that he appeal
the sentence. Wright stated the only telephone conversation he
recalled having with petitioner concerned cooperating with the
government to get a reduction in sentence. Wright stated that the
telephone conversation occurred a few weeks after sentencing.
Wright stated that in his years of practice as a defense attorney
he never failed to file a notice of appeal when instructed to do
so by a client.
Crutchfield testified that prior to sentencing he talked to
petitioner about cooperating.
Petitioner's versions conflicts with that of Wright. The Court,
however, finds that Wright's testimony is more credible. The
Court notes that Wright has been in practice for a number of
years, and that he is a district judge in Wrightsville. He
testified that he was aware of his obligation to file an appeal
and was familiar with the practice of filing an Anders brief on
appeal. The evidence supports the conclusion that the telephone
conversation focused on getting petitioner to cooperate with the
government in an effort to get a reduction in sentence. After
Wright told petitioner that there was no ground for appeal,
petitioner did not clearly instruct Wright that he wanted Wright
to pursue the appeal.
Accordingly, the Court denies the § 2255 motion to vacate, set
aside or correct sentence.
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