Kenneth Nembhard v. UNITED STATES OF AMERICA On Appeal from the United States District Court for the…

* Honorable Evan J. Wallach, United States Court of International Trade, sitting by
designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-2579
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KENNETH NEMBHARD,
Appellant
v.
UNITED STATES OF AMERICA
__________
On Appeal from the United States District Court
for the District of New Jersey
Civil Action No. 00-1799
District Judge: Judge Joseph A. Greenaway, Jr.
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Submitted Under Third Circuit LAR 34.1(a)
December 11, 2002
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Before: FUENTES AND GARTH, Circuit Judges, and WALLACH, Judge*
(Opinion Filed: December 13, 2002)
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OPINION
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GARTH, Circuit Judge:
This case involves the appeal of the district court’s judgment denying appellant
Kenneth Nembhard’s petition brought pursuant to 28 U.S.C. § 2255 to vacate his sentence.
We had earlier granted Nembhard a certificate of appealability with respect to a single
issue: Nembhard’s claim that he received ineffective assistance of counsel when his trial
counsel failed to file a direct appeal at Nembhard’s request.
We will vacate the district court’s judgment and remand the case for an evidentiary
hearing on this issue as provided for by § 2255.
I.
Because we write solely for the benefit of the parties, we recount the facts and the
procedural history of the case only as they are relevant to the following discussion.
On October 23, 1996, a grand jury indicted Nembhard on one count of conspiracy to
import cocaine in violation of 21 U.S.C. § 963. Nembhard initially pled not guilty at
arraignment, but later pled guilty on January 15, 1999. On May 5, 1999, Nembhard was
sentenced to a 60-month term of imprisonment. No notice of appeal was filed.
Nembhard apparently attempted in August 1999 to file a petition to vacate his
sentence pursuant to 28 U.S.C. § 2255; and on April 14, 2000, filed a motion to file
supplemental pleadings as well as an accompanying memorandum. As the district court
clerk’s office had no record of Nembhard’s August 1999 petition, the district court ordered
that Nembhard file an amended petition containing all of his claims by November 15, 2000;

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1 The other grounds in Nembhard’s petition were (1) that the district court
miscalculated his criminal history at sentencing; (2) that the “safety valve” provision of 18
U.S.C. § 3553(f) entitled him to a downward departure from the mandatory minimum
sentence imposed by statute; and (3) that he received ineffective assistance of counsel at
the sentencing stage.
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and Nembhard did so on October 30, 2000. (All of these filings were apparently pro se,
though Nembhard is now represented on appeal.) Nembhard’s petition advanced a number
of grounds for vacating his sentence, including the claim that he received ineffective
assistance of counsel because his trial counsel allegedly failed to file a notice of appeal
pursuant to Nembhard’s instructions.1
The district court entered an order on May 22, 2001, denying Nembhard’s petition
with prejudice, according to the opinion accompanying the order. See Nembhard v. United
States, Civ. Action No. 00-1799, slip op. at 2 (D.N.J. May 22, 2001). On June 18, 2001,
Nembhard filed a notice of appeal. We treated the notice of appeal as a motion for a
certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1), and on August 30, 2001,
granted a certificate of appealability to Nembhard with respect only to “the appellant’s
claim that counsel was ineffective for failing to file a direct appeal.” Supp. App. 2.
II.
As we have issued a certificate of appealability, we have jurisdiction under 28 U.S.C.
§§ 2253 and 2255 to resolve the appeal.
A.

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2 It is not immediately clear what “timely” means in this context. If the request to
file an appeal occurred within ten days of sentencing, the request would be timely. See Fed.
R. App. P. 4(b)(1)(A). As the Government implies in its brief, see Appellee’s Br. at 11-12
& n.3, 16, Nembhard might have an ineffective-assistance-of-counsel argument if
Nembhard had made a request after the ten-day period but within the thirty-day period
following the ten-day period permitted for moving to extend the time to file a notice of
appeal for “excusable neglect or good cause.” Fed. R. App. P. 4(b)(4).
3 The provision governing petitions for federal prisoners, 28 U.S.C. § 2255, was
amended by section 105 of the Antiterrorism and Effective Death Penalty Act (AEDPA),
Pub. L. No. 104-132, 110 Stat. 1220 (1996). AEDPA did not change the language of §
2255 concerning evidentiary hearings.
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The Supreme Court has “long held that a lawyer who disregards specific instructions
from the defendant to file a notice of appeal acts in a manner that is professionally
unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (citing Rodriquez v.
United States, 395 U.S. 327 (1969)). If Nembhard actually requested that his trial counsel
file an appeal, and if that request were timely,2 then Nembhard would be entitled to relief.
He could then file an out-of-time direct appeal. See Solis v. United States, 252 F.3d 289,
294 (3d Cir. 2001) (“A new opportunity to directly appeal is the remedy for petitioner's
alleged ineffective assistance of counsel.”) (citation omitted).
Section 2255 provides that a district court “shall . . . grant” an evidentiary hearing
“[u]nless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255 (emphasis added).3 As this Court has
noted, “The discretion of the district court summarily to dismiss a motion brought under §
2255 is limited to cases where the motion, files, and records ‘show conclusively that the
movant is not entitled to relief.’” United States v. Nahodil, 36 F.3d 323, 326 (3d Cir.

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1994) (quoting United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992) (internal citations
and quotation marks omitted)) (emphasis added).
B.
Nembhard made sufficient allegations in his § 2255 petition to require an
evidentiary hearing. Nembhard’s supplementary memorandum to his petition listed as its
third ground that “Counsel Blair Zwellman failed to file a Notice of Appeal after being so
advised to do so by petitioner Kenneth Nembhard.” App. 39 (capitalization altered). The
memorandum alleged that Nembhard was aware of the ten-day period during which he was
required to take an appeal from his sentence imposed on May 5, 1999. It also alleged that
there was some discussion with counsel, after which Nembhard was initially inclined not to
take an appeal, but that ultimately, Nembhard concluded that he wanted to appeal and made
such a request of counsel. Neither the petition nor the memorandum indicate when this
alleged request of counsel was made.
In relevant part, the memorandum states:
Mr. Nembhard, petitioner after sentencing was imposed on or about
May 6 [sic], 1999, your petitioner requested counsel to file a Notice of
Appeal on his behalf. A obligation that was required of counsel as a matter of
right to petitioner. A right that counsel infringed upon and petitioner was in
fact perjudice [sic] by counsel’s unexcusable neglect in not filing an appeal as
requested to do so by petitioner Nembhard.
As counsel’s failure to file notice of appeal when requested by
petitioner deprives petitioner Nembhard of his sixth amendment right to
assistance of counsel, notwithstanding that the appellant [sic] review may
have had reasonable probability of success. . . .
The record will reveal that the court advised petitioner of his right to
file a Notice of Appeal within ten days from the date judgment was entered.
As petitioner there after requested counsel to file an appeal after petitioner

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suggested that he would not do so. However, it was after careful thought that
petitioner determine [sic] that to not file such an appeal was not the right
position to take and requested counsel to then file a notice of appeal as
required.
This has resulted in lost [sic] to petitioner’s vital right to direct appeal,
the loss of the right to appeal because of counsel’s malfeasance or
nonfeasance, without more, is enough to entitle the petitioner to relief.
App. 39-40.
The district court concluded that Nembhard’s “ineffective assistance of counsel
claim, as to this allegation, fails for want of merit and must be denied.” Nembhard, Civ.
Action No. 00-1799, slip op. at 15. The district court justified this conclusion in part
because “[p]etitioner fails to allege or aver that he expressed his request to counsel within
the ten-day filing period required by [Federal] Rule [of Appellate Procedure] 4.” Id. at 14.
The district court then hypothesized that “[i]f, in fact, [p]etitioner’s request occurred after
May 16, 1999, such motion would have been precluded as untimely.” Id. (citing Fed. R.
App. P. 4(b)(1)(A)(i)). (See note 2, supra.) The district court further stated that
“[p]etitioner’s concession that his counsel failed to file a notice of appeal after
consultation intimates that a discussion occurred between [p]etitioner and his counsel in
which counsel employed his professional judgment regarding the likelihood of a successful
appeal.” Id. Finally, the district court indicated that “[p]etitioner’s claim that counsel’s
refusal [sic] to file an appeal in the instant action fails to demonstrate that counsel’s action,
or inaction, prejudiced [p]etitioner or constituted deficient conduct.” Id. In
drawing these conclusions without holding an evidentiary hearing, the district court
contravened the requirements of § 2255 and accordingly abused its discretion. As stated

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earlier, § 2255 contains the mandatory instruction that “unless the motion [i.e., the § 2255
petition] and the files and records of the case conclusively show that the prisoner is
entitled to no relief,” a district “court . . . shall grant a prompt hearing thereon,
determine the issues and make findings of fact and conclusions of law thereto.” 28 U.S.C.
§ 2255 (emphasis added).
The district court’s determinations, however, did not, and could not, amount to a
finding that “the motion and the files and records of the case conclusively show” that
Nembhard was not entitled to relief on his claim for ineffective assistance of counsel.
Since the district court did not -- and from the record before us, it appears, could not --
identify anything in the record that contradicts Nembhard’s constitutional claim, the district
court was obliged to hold an evidentiary hearing pursuant to § 2255.
We hold that the district court abused its discretion in failing to conduct an
evidentiary hearing on Nembhard’s claim that his counsel’s failure to file a direct appeal at
Nembhard’s alleged instruction constituted ineffective assistance of counsel. In Solis, we
stated that
when a defendant is convicted of a crime and alleges that his lawyer failed to
appeal the conviction, and there is a potential factual dispute on this issue, the
defendant is entitled to a hearing before the District Court to prove that he
made the request and that the lawyer failed to honor it.
Solis, 252 F.3d at 295. Nembhard is similarly entitled to such an evidentiary hearing.
The Government’s arguments do not compel an opposite conclusion. The
Government advocates a rule under which § 2255 petitioners in Nembhard’s situation

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4 In United States v. Thomas, 221 F.3d 430 (3d Cir. 2000), cited by the
Government, we explained that “vague and conclusory allegations contained in a § 2255
petition may be disposed of without further investigation by the District Court,” id. at 437
(citing United States v. Dawson, 857 F.2d 923, 928 (3d Cir. 1988)), and that a failure to
allege “sufficient facts” can lead to summary dismissal of a claim. Id. at 437-38 (noting as
an example petitioner’s “claims involving the alleged failure to interview and to call certain
witnesses, with no potential witnesses identified”). The Government also cites David v.
United States, 134 F.3d 470 (1st Cir. 1998), in which the First Circuit held that a § 2255
petitioner’s allegations of ineffective assistance of counsel on the grounds that his counsel
had failed to communicate an offered plea bargain to him until the government had
withdrawn it, id. at 477, constituted “threadbare allusions to a phantom plea bargain” that
were “conclusory.” Id. at 478. In this case, by contrast, Nembhard’s claims were not so
vague or conclusory as to permit summary dismissal.
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would “be required to allege: (1) that he or she instructed counsel to file a notice of appeal;
(2) that the request was made in a timely manner -- i.e., within the ten-day period prescribed
by Rule 4 (or perhaps, the thirty-day extension period); and (3) that counsel failed to follow
petitioner’s request.” Appellee’s Br. at 15-16. The Government argues that the “timing of
[the] request is crucial,” id. at 11, and that a “failure to allege” the time of when the request
was made “would drain judicial resources.” Id. at 12.
But § 2255 does not contain an exception to its requirement of an evidentiary
hearing for judicial economy. Furthermore, the authorities cited by the Government are
inapposite.4 We are not persuaded that in the absence of the evidentiary hearing mandated
by § 2255, the district court could have denied relief to Nembhard.
We therefore hold that the district court abused its discretion in failing to hold an
evidentiary hearing. The district court’s judgment will be vacated and the case will be
remanded for an evidentiary hearing. If Nembhard is permitted to file a direct appeal, then,

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5 We note that the Certificate of Appealability had denied review of several other
issues that Nembhard had desired to raise in his § 2255 motion. If the district court, having
held a hearing, determines that Nembhard’s counsel was ineffective, this Court’s order of
August 30, 2001, which issued a Certificate of Appealability limited to the issue of
ineffective assistance of counsel, would not bind a future panel of this Court from hearing
any other issues raised in Nembhard’s direct appeal.
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in the future event that Nembhard presents another § 2255 petition, it should be deemed his
first filed petition. See Solis, 252 F.3d at 295.5
III.
For the foregoing reasons, the judgment of the district court will be VACATED and
REMANDED.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Leonard I. Garth
Circuit Judge

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