Habeas – Counsel – Appeal
When a defendant in a criminal case specifically instructs a lawyer to file a notice of appeal, the lawyer’s failure to do so deprives the defendant of the Sixth Amendment right to counsel, regardless of whether an appeal was likely to succeed. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Peguero v. United States, 526 U.S. 23, 28 (1999); Rodriquez v. United States, 395 U.S. 327, 330 (1969); Gant v. United States, 627 F.3d 677, 681 (7th Cir. 2010), cert. denied, 131 S. Ct. 1840 (2011); Castellanos v. United States, 26 F.3d 717, 718 (7th Cir. 1994). That is what Ryan claimed in the district court and argues here: he asked counsel to file a notice of appeal, and they failed to do so. If the allegation is true and the § 2255 motion is not barred on timeliness grounds, Ryan is entitled to have his criminal judgment vacated and reimposed to permit a direct appeal. See United States v. Hirsch, 207 F.3d 928, 931 (7th Cir. 2000); Castellanos, 26 F.3d at 720.
True, these principles are neither earth-shattering nor in dispute. Doesn’t hurt to have them restated so concisely, either. Of equal if not greater interest: the court’s discussion of how the 1-year statute of limitations is measured if the defendant was cast adrift following conviction: “No rule of thumb emerges from the cases on how long prisoners may take to discover their lawyers’ missteps, and we hesitate to pick a magic number. … [T]his is a fact-intensive inquiry and, here, that point probably lies somewhere beyond two months given Ryan’s status as a first-time offender, the court’s failure to notify him of the time to appeal, and the limited ability of prisoners— especially those in transit—to communicate freely by mail with those outside the prison.”