Petitioner-Appellant Kenya Brown was sentenced on December 28, 2016. But no notice of appeal was filed.
Brown had pleaded guilty, under a plea agreement, to conspiring to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846; and possessing a firearm in furtherance of that conspiracy, in violation of 18 U.S.C. § 924(c). At the December 2016 sentencing, he received a sentence of 248 months’ imprisonment and five years’ supervised release — “a sentence on the low-end of the Guidelines range.” See Summary Order at 2.
But about a year after the sentencing — on January 8, 2018 — Brown filed a pro se petition, under 28 U.S.C. § 2255, alleging that he was “denied effective assistance of counsel with regard to post-sentencing proceedings due to his counsel’s failure to ‘consult with Mr. Brown on the consequences of not filing a direct appeal.’” See Summary Order 2-3. Brown asserted that he “would have appealed had he understood the consequences” of not doing so. Id.
After the government responded to Brown’s 2255 motion, Brown filed a traverse, on June 4, 2018, “reiterating the position that Brown’s counsel failed to advise him adequately on his right to appeal.” Id. But “[o]ver a year later … Brown filed a one-page affidavit, dated August 16, 2019,” attesting that he had “clearly stated [his] desire to appeal and requested that [trial counsel] file a notice of appeal on [his] behalf.” See Summary Order at 3.
The district court denied Brown’s § 2255 motion and entered a final judgment, without holding an evidentiary hearing “or ordering any supplemental affidavits[.]” See Summary Order at 3. It concluded that Brown’s “August 2019 contention” (in the affidavit) that he expressly asked counsel to file a notice of appeal wasn’t credible. The court found that the August 2019 affidavit was inconsistent with the initial § 2255 motion in which Brown claimed “he would have appealed” if counsel had properly advised him, which “implied that he did not request an appeal.” Id. at 3,4. In addition, the district court noted that “that Brown both waived his right to appeal and acknowledged that waiver in open court during his plea proceeding.” Id. at 3.
The Second Circuit, however, vacated the district court’s order and remanded for further proceedings.
The Circuit noted that § 2255 provides that, “‘[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law.’” See Summary Order at 3 (quoting 28 U.S.C. § 2255(b)). And in applying the § 2255(b) standard, a district court must view the record “in the light most favorable to the petitioner” who has “the burden … to establish at a hearing a prima facie case for relief.” See Summary Order at 3 (quoting Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009)).
So here, because the district court “denied any form of an evidentiary hearing,” the Circuit’s review of the district court’s decision “is for clear error” on issues of fact, “such as a district court’s determination that the record precludes the claim.” And de novo review applies to issues of law. See Summary Order at 3-4 (quoting Puglisi, id. at 215).
A defense counsel’s post-sentencing performance is constitutionally deficient if it “‘costs a defendant an appeal that the defendant would have otherwise pursued,’” even when the defendant’s plea agreement waived the right to appeal. And “prejudice will always be presumed.” See Summary Order at 4 (quoting Garza v. Idaho, 139 S.Ct. 738, 742 (2019)). Moreover, when a defendant “‘claims that his attorney failed to file a requested notice of appeal,’ this will often lead to ‘a hearing before the district court pursuant to § 2255 to determine whether the client requested the appeal.’”See Summary Order at 4 (quoting Campusano v. United States, 442 F.3d 770, 776 (2d Cir. 2006)).
Here, the district court “committed clear error,” the Circuit concluded, by summarily denying Brown’s § 2255 motion “on the basis of Brown’s inconsistent statements without  holding a testimonial hearing or,  in the alternative, ordering a more limited method of supplementing the evidentiary record, such as directing Brown’s sentencing counsel to submit a responsive affidavit.” See Summary Order at 4-5. Although “Brown’s statements may have been inconsistent, the record does not conclusively show that he is not entitled to any relief.” Id. at 4. The statements “might be reconcilable with additional context”; or “one or both accounts may turn out to be false.” Id.
Accordingly, the Circuit vacated the district court’s order denying the 2255 motion and remanded for further proceedings. Id. at 4-5.