United States of America v. Robert Lee Allen

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 02-2093
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UNITED STATES OF AMERICA
v.
ROBERT LEE ALLEN,
Appellant
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Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 00-cr-00361-4
District Judge: Honorable Stewart Dalzell
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Submitted Under Third Circuit LAR 34.1(a) December 16, 2003
Before: ROTH, M cKEE, and ROSENN, Circuit Judges
(Filed: January 15, 2004)
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OPINION OF THE COURT
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ROSENN, Circuit Judge.
The appellant, Robert Lee Allen, was convicted in the United States District Court
for the Eastern District of Pennsylvania in February 2001 of one count of armed bank
robbery in violation of 18 U.S.C. § 2113(d), using a firearm during a bank robbery in
violation of 18 U.S.C. § 924(c) and aiding and abetting in violation of 18 U.S.C. § 2. His

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counsel did not file a notice of appeal although appellant claims he so requested.
Following the petitioner’s plea of guilty in September 2000, the court
sentenced him in February 2001 to 110 months in prison with five years of supervised
release and fined him $5000. In June 2001, Allen filed a motion to vacate, set aside, or
correct sentence, alleging, among other things, that his counsel was constitutionally
ineffective for not filing a notice of appeal for the conviction and sentence. The District
Court dismissed the motion with prejudice in February 2002 with the exception of the
ineffective assistance of counsel claim. On appeal to this court, the petitioner claims that
the District Court applied an incorrect legal standard when it interpreted a prejudice prong
of Strickland v. Washington, 466 U.S. 668 (1984) to mean that Allen’s counsel was
constitutionally ineffective for not filing a notice of appeal at Allen’s request only if Allen
could show that the appeal was meritorious. The petitioner argues that to prove his
ineffective assistance of counsel claim under the Sixth Amendment, he need not show the
merit of his appeal, but only must show (1) that counsel’s representation fell below an
objective standard of reasonableness, Strickland, 466 U.S. at 687, and (2) that counsel’s
deficient performance prejudiced the defendant. Id. at 692. We agree.
Prejudice is sufficient to satisfy the second prong of Strickland. Prejudice is
presumed from counsel’s failure to file a Notice of Appeal when requested by his client.
Solis v. United States, 252 F.3d 289, 293 (3d Cir. 2001). The District Court, however,
concluded that Allen must in addition demonstrate in his 28 U.S.C. § 2255 motion that his

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appeal had some merit. Under Roe v. Flores-Ortega, the petitioner must only show that
“but for counsel’s inefficient conduct, he would have appealed.” 528 U.S. 470, 486
(2000). He need do no more because prejudice flows from the failure of counsel to file a
Notice of Appeal. Counsel’s failure deprived his client of more than a fair judicial
proceeding; “that deficiency deprived respondent of the appellate proceeding altogether.”
Id. at 483.
Thus, if after an evidentiary hearing, the District Court is satisfied that Allen did
ask his lawyer to file a Notice of Appeal and the lawyer failed to act affirmatively, Allen
must be re-sentenced so that he can proceed with his appeal. In his brief to this court, the
Government acknowledges that the defendant is entitled to an evidentiary hearing without
showing that his appeal likely would have merit. The Government agrees that where, as
here, “the issue in dispute can not be resolved by reference to the record, the District
Court is required to conduct an evidentiary hearing. The Government concurs with the
brief filed by the appellant’s counsel.”
II.
Accordingly, the judgment of the District Court is vacated and the case is
remanded for further proceedings not inconsistent with this opinion.

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TO THE CLERK:
Please file the foregoing opinion.
/s/ Max Rosenn, Circuit Judge

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