Last week the Sixth Circuit joined a circuit split over whether an attorney's failure to file a notice of appeal despite receiving explicit instruction to do so from their client constitutes ineffective assistance of counsel. The case, Campbell v. United States, involved a defendant who entered into a plea agreement whereby he partially waived his right to appeal his conviction and sentence. No. 11-3233 (6th Cir. July 19, 2012).
The defendant nevertheless instructed his attorney to appeal his conviction. After the attorney failed to do so, the defendant filed a motion to vacate under 28 U.S.C. § 2255 in which he contended, among other things, that his attorney's failure to file an appeal despite his express instruction to do so amounted to ineffective assistance of counsel.
As such, the Sixth Circuit “granted a certificate of appealability on the sole issue of whether an attorney's failure to file a notice of appeal under these specific circumstances constitutes ineffective assistance of counsel.” Writing for the appellate panel, Judge Karen Nelson Moore noted “the absence of precedential Sixth Circuit authority on the issue” and the existence of the following circuit split:
Several circuits have concluded that counsel must file an appeal when requested, even where the defendant has entered into a plea agreement waiving some or all of his appeal rights. See United States v. Poindexter, 492 F.3d 263, 273 (4th Cir. 2007); United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007); Watson v. United States, 493 F.3d 960, 964 (8th Cir. 2007); Campusano v. United States, 442 F.3d 770, 777 (2d Cir. 2006); United States v. Sandoval-Lopez, 409 F.3d 1193, 1197 (9th Cir. 2005); United States v. Garrett, 402 F.3d 1262, 1266-67 (10th Cir. 2005); Gomez-Diaz v. United States, 433 F.3d 788, 790 (11th Cir. 2005). Others have come to the opposite conclusion. Nunez v. United States, 546 F.3d 450, 453 (7th Cir. 2008); United States v. Mabry, 536 F.3d 231, 241-42 (3rd Cir. 2008).
Sarlog v. United States, 422 F. App'x 399, 403 n.2 (6th Cir. 2011). After reviewing the conflicting authority and Supreme Court precedent, the Sixth Circuit in Campbell concluded that “a defendant is entitled to counsel who will follow through on express instructions to proceed with an appeal, no matter what the ultimate odds of success.”