Where a §2255 petition alleges that counsel failed to file a requested notice of appeal, the district court may not summarily dismiss but must undertake a factual inquiry.

In United States v. Thomas, No. 22-2026 (February 21, 2024), the Circuit (Jacobs, Sack, and Nardini) reversed, in a per curiam opinion, the district court’s summary denial of a §2255 petition alleging that counsel failed to file a notice of appeal as petitioner requested. Thomas swore in his petition that he told his lawyer to file the notice of appeal. The district court held that this allegation was insufficient because Thomas did not include details, such as when and how the request was made, whether there were discussions about it, and whether he was aware of the deadlines for an appeal. The Circuit held that the district court’s summary denial was an abuse of discretion. The Court reaffirmed its precedent in United States v. Campuzano, 442 F.3d 770, 776 (2d Cir. 2006), that a factual inquiry is required “when a defendant claims that his attorney failed to file a requested notice of appeal.” Any uncertainty about the precise facts must be resolved by a fact-finding process. A full evidentiary hearing may not be necessary, if affidavits from prior counsel resolve the factual issues.

The Circuit emphasized the “sacrosanct” nature of the right to appeal and reiterated the rules governing the filing of a notice of appeal:

1. An attorney must file a notice of appeal when requested to do so, even if he believes the appeal would be frivolous.
2. In some circumstances, even absent a request, an attorney has a “duty to consult” the client about whether he wishes to appeal.
3. If the lawyer mistakenly advises the defendant that there is no right to appeal, a deficiency and prejudice are presumed and the burden shifts to the government to “show by clear and convincing evidence that the defendant actually appealed or had independent knowledge of his right to appeal and elected not to do so.”