United States of America v.  Walter Oriley Poindexter

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-7635 
WALTER ORILEY POINDEXTER,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-7636 
WALTER ORILEY POINDEXTER,
Defendant-Appellant. 
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(CR-03-213-WDQ; CA-05-829-WDQ)
Argued: May 22, 2007
Decided: June 28, 2007
Before MOTZ and SHEDD, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by published opinion. Senior Judge Hamilton
wrote the opinion, in which Judge Motz and Judge Shedd joined.

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COUNSEL
ARGUED: Megan Elizabeth Quinlan, COVINGTON & BURLING,
Washington, D.C., for Appellant. Harry Mason Gruber, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Caro-
line M. Brown, COVINGTON & BURLING, Washington, D.C., for
Appellant. Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, for Appellee.
OPINION
HAMILTON, Senior Circuit Judge:
Walter Poindexter filed a motion pursuant to 28 U.S.C. § 2255,
contending, among other things, that his attorney rendered constitu-
tionally ineffective assistance when he failed to file a timely notice of
appeal after being unequivocally instructed to do so. In denying
Poindexter’s motion without an evidentiary hearing, the district court
declined to resolve the factual dispute concerning whether Poindexter
unequivocally instructed his attorney to file a timely notice of appeal.
Instead, the court concluded that Poindexter’s ineffective assistance
of counsel claim lacked merit because: (1) in his plea agreement,
Poindexter waived his right to appeal his conviction and sentence; and
(2) Poindexter was sentenced in accordance with the terms of the plea
agreement. Poindexter appeals. For the reasons stated below, we hold
that an attorney renders constitutionally ineffective assistance of
counsel if he fails to follow his client’s unequivocal instruction to file
a timely notice of appeal even though the defendant may have waived
his right to challenge his conviction and sentence in the plea agree-
ment. Accordingly, we vacate the district court’s judgment and
remand for further proceedings consistent with this opinion.
I
On October 23, 2003, Poindexter was charged by a federal grand
jury sitting in the District of Maryland with conspiracy to distribute
in excess of one kilogram of heroin, 21 U.S.C. §§ 841(a)(1) and 846,
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and three counts of distributing heroin, id. § 841(a)(1). The conspir-
acy count alleged that Poindexter and another individual used various
locations in the City of Baltimore to cut, package, stash, and sell her-
oin. The conspiracy count also alleged as an overt act in furtherance
of the conspiracy that, on January 22, 2001, Poindexter shot and
killed another man that Poindexter believed was responsible for bur-
glarizing one of the stash houses. The three distribution counts
alleged that, on three separate occasions in September 2002, Poindex-
ter sold a quantity of heroin to an FBI cooperating witness. On
December, 1, 2003, the case went to trial. After three days of trial,
Poindexter decided to plead guilty to the three distribution counts.
In the plea agreement, the parties stipulated to a drug amount sub-
stantially lower than the one kilogram quantity charged in the conspir-
acy count. For its part, the government agreed not to seek an
enhancement to Poindexter’s sentence based on Poindexter’s alleged
role in the January 22, 2001 shooting incident.1 For his part, Poindex-
ter agreed not to appeal his sentence, including "any issues that
relate[d] to the establishment of the guideline range," (J.A. 39), pro-
vided: (1) the district court did not upwardly depart from the sentenc-
ing range provided for by the Sentencing Guidelines; or (2) the
sentence imposed did not exceed the statutory maximum allowed
under the law, which was twenty years’ imprisonment on each count.2
1The City of Baltimore also agreed not to charge Poindexter with any
offenses related to the January 22, 2001 incident.
2In relevant part, the appeal waiver contained in the plea agreement
provides:
[Poindexter] . . . knowingly and expressly waive[s] all rights
conferred by 18 U.S.C. Section 3742 to appeal whatever sen-
tence is imposed, including any issues that relate to the establish-
ment of the guideline range, reserving only the right to appeal
from an upward . . . departure from the guideline range that is
established at sentencing. Nothing in this agreement shall be
construed to prevent [Poindexter] . . . from invoking the provi-
sions of Federal Rule of Criminal Procedure 35, and appealing
from any decision thereunder, should a sentence be imposed that
exceeds the statutory maximum allowed under the law . . . .
(J.A. 39).
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On December 4, 2003, the district court held a Rule 11 hearing. See
Fed. R. Crim. P. 11. During the hearing, Poindexter acknowledged
that he had discussed the appeal waiver with his attorney, understood
the nature of the waiver, and agreed to be bound by the waiver.
A presentence report (PSR) was prepared in preparation for sen-
tencing. The PSR recommended a sentencing range of 168 to 210
months’ imprisonment, based on the conclusion that Poindexter’s
total offense level was 30 and his criminal history category was VI.
In accordance with the PSR’s recommendations, the district court sen-
tenced Poindexter to concurrent terms of 168 months’ imprisonment
on each count. Poindexter did not file a notice of appeal.
On March 28, 2005, Poindexter filed a motion pursuant to 28
U.S.C. § 2255 to vacate, set aside, or correct his sentence. In his
motion, Poindexter claimed, among other things, that he was denied
the effective assistance of counsel when his attorney failed to file a
timely notice of appeal after he unequivocally instructed his attorney
to do so.3
On August 8, 2005, the district court denied Poindexter’s motion
without an evidentiary hearing, holding, inter alia, that Poindexter
could not prevail on his claim that his attorney rendered constitution-
ally ineffective assistance of counsel when he failed to file a timely
notice of appeal because Poindexter was sentenced within the sen-
tencing range established by the Sentencing Guidelines and, therefore,
any challenge to his sentence would fall under the appeal waiver con-
tained in the plea agreement. In so ruling, the district court incorrectly
observed that Poindexter’s appeal waiver covered an appeal of his
conviction, as opposed to just an appeal of his sentence. Also of note,
the district court declined to resolve the factual dispute concerning
whether Poindexter unequivocally instructed his attorney to file a
timely notice of appeal.4 Following the district court’s denial of a cer-
3In his § 2255 motion, Poindexter also challenged the voluntariness of
his plea and the sufficiency of the evidence. He also presented a claim
of prosecutorial misconduct and put forth other claims of ineffective
assistance of counsel.
4In contrast to Poindexter’s insistence that he instructed his attorney to
file a timely notice of appeal, there is evidence in the record suggesting
the opposite is true. In a February 16, 2005 letter to Poindexter, his attor-
ney denied that he was instructed by Poindexter to file a notice of appeal.
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tificate of appealability, Poindexter filed an application for a certifi-
cate of appealability in this court. On July 12, 2006, we granted
Poindexter a certificate of appealability on his claim that his attorney
rendered constitutionally ineffective assistance of counsel when he
failed to file a timely notice of appeal after being unequivocally
instructed to do so.
II
When reviewing an appeal from the denial of a § 2255 motion, we
review de novo the district court’s legal conclusions. United States v.
Nicholson, 475 F.3d 241, 248 (4th Cir. 2007). When the district court
denies § 2255 relief without an evidentiary hearing, the nature of the
court’s ruling is akin to a ruling on a motion for summary judgment.
Id. In such a circumstance, we review the facts in the light most
favorable to the § 2255 movant. Id. Because the district court did not
hold an evidentiary hearing to resolve the question of whether
Poindexter unequivocally instructed his attorney to file a timely
notice of appeal, we must assume that Poindexter did so instruct for
purposes of resolving his appeal.
Poindexter contends that an attorney who disregards his client’s
unequivocal instruction to file a timely notice of appeal acts in a man-
ner that is both professionally unreasonable and presumptively preju-
dicial, notwithstanding the fact that the client may have executed an
appeal waiver. In response, the government submits that Poindexter’s
appeal waiver allowed the district court to dismiss his § 2255 motion
if the district court found his claims frivolous, either because they
were covered by the appeal waiver or because they failed on the mer-
its.
The Sixth Amendment provides that, "[i]n all criminal prosecu-
tions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence." U.S. Const. amend. VI. The Supreme Court
has long recognized that the right to counsel includes "the right to the
effective assistance of counsel." McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970). An ineffective assistance of counsel claim
requires a showing that (1) "counsel’s performance was deficient" and
(2) "the deficient performance prejudiced the defense." Strickland v.
Washington, 466 U.S. 668, 687 (1984).
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The Constitution of course does not give a criminal defendant the
right to appeal as a matter of right. Jones v. Barnes, 463 U.S. 745, 751
(1983). However, the United States Code provides this right in 18
U.S.C. § 3742, and we have recognized that a defendant can waive
this statutory right. United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990).
In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court
applied Strickland to an ineffective assistance claim involving a
defendant who did not give his attorney instructions on whether to file
a timely notice of appeal. Id. at 476-87. The defendant in that case
neither asked his lawyer to file a timely notice of appeal nor con-
sented to her not filing one. Id. at 475. On appeal from the denial of
relief under 28 U.S.C. § 2254, the Ninth Circuit held that the defen-
dant was deprived of the effective assistance of counsel, holding that
an attorney must file a timely notice of appeal unless the defendant
specifically instructs otherwise. Flores-Ortega, 528 U.S. at 476.
The Supreme Court in Flores-Ortega began its performance analy-
sis by noting that an attorney who disregards a defendant’s specific
instruction to file a timely notice of appeal acts in a professionally
unreasonable manner. Id. at 477. The Court also noted that an attor-
ney is under no obligation to file a notice of appeal where the defen-
dant explicitly instructs his attorney not to file one. Id. The
performance issue in Flores-Ortega—was the attorney constitution-
ally deficient for not filing a notice of appeal where the defendant had
not conveyed or clearly conveyed his appellate wishes—obviously
fell somewhere "between" these two principles. Id.
The Court in Flores-Ortega rejected the bright-line performance
rule applied in the Ninth Circuit as "inconsistent with Strickland’s
holding that ‘the performance inquiry must be whether counsel’s
assistance was reasonable considering all the circumstances.’" Id. at
478 (quoting Strickland, 466 U.S. at 688). Instead, the Court opined
that, in certain circumstances, an attorney is constitutionally required
to "consult" with the defendant concerning the advantages and disad-
vantages of taking an appeal and to discover the defendant’s appellate
wishes. Id. at 478. The Court stated that an attorney must consult with
a defendant when there is reason to believe that either (1) a rational
defendant would want to appeal or (2) the defendant reasonably dem-
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onstrated to his attorney that he was interested in appealing. Id. at
480. In assessing whether an attorney had a constitutional duty to con-
sult, the Court indicated that several factors were relevant, including
whether the conviction followed a trial or guilty plea. Id. In cases
involving guilty pleas, the Court instructed lower courts to consider
"whether the defendant received the sentence bargained for as part of
the plea and whether the plea expressly reserved or waived appeal
rights." Id.
Turning to the prejudice prong, the Court observed that a presump-
tion of prejudice applies when an attorney’s deficient performance
deprives the defendant of an appeal. Id. at 483. Thus, where the
defendant unequivocally instructs an attorney to file a timely notice
of appeal, prejudice is presumed because it results in the "forfeiture"
of the appellate proceeding. Id.; see also United States v. Sandoval-
Lopez, 409 F.3d 1193, 1195-99 (9th Cir. 2004) (noting that the "preju-
dice in failure to file a notice of appeal cases is that the defendant lost
his chance to file the appeal, not that he lost a favorable result that
he would have obtained by appeal"). If the defendant did not so
instruct his attorney and his attorney subsequently did not fulfill his
consultation obligations, prejudice will be presumed if the defendant
can show that, had he received reasonable advice from his attorney,
he would have instructed his attorney to file a timely notice of appeal.
Flores-Ortega, 528 U.S. at 486. Whether the defendant has met the
prejudice standard "will turn on the facts of [the] particular case." Id.
at 485. However, "evidence that there were nonfrivolous grounds for
appeal or that the defendant in question promptly expressed a desire
to appeal will often be highly relevant in making [the prejudice]
determination." Id. In demonstrating prejudice, the defendant is under
no obligation "to demonstrate that his hypothetical appeal might have
had merit." Id. at 486.
As noted above, the district court did not hold an evidentiary hear-
ing to determine whether Poindexter unequivocally instructed his
attorney to file a timely notice of appeal. Accordingly, we must
assume that Poindexter did so instruct. This assumption is outcome
determinative in this case for the following reasons. Once Poindexter
unequivocally instructed his attorney to file a timely notice of appeal,
his attorney was under an obligation to do so. Under Flores-Ortega,
therefore, his attorney acted in a professionally unreasonable manner.
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Because his attorney’s unprofessional conduct resulted in Poindexter
losing his appellate proceeding, he has established prejudice under
Flores-Ortega as well.
The government argues that Flores-Ortega did not involve an
appeal waiver and, therefore, is distinguishable and of little assistance
in this case. However, the Court in Flores-Ortega stated that, once an
attorney is unequivocally instructed to file a timely notice of appeal,
he is under an obligation to do so. Id. at 477. Under the Court’s hold-
ing in that case, it is only when the defendant either does not make
his appellate wishes known or does not clearly express his wishes that
an attorney has some latitude in deciding whether to file an appeal.
Id. at 478-80. Simply put, Flores-Ortega reaffirms the time-honored
principle that an attorney is not at liberty to disregard the appellate
wishes of his client. See Peguero v. United States, 526 U.S. 23, 28
(1999) ("[W]hen counsel fails to file a requested appeal, a defendant
is entitled to [a new] appeal without showing that his appeal would
likely have had merit."); Rodriquez v. United States, 395 U.S. 327
(1969) (holding that an attorney who disregards his client’s instruc-
tion to file a timely notice of appeal acts in a professionally unreason-
able manner); Cf. United States v. Peak, 992 F.2d 39, 42 (4th Cir.
1993) (holding that a "criminal defense attorney’s failure to file a
notice of appeal when requested by his client deprives the defendant
of his Sixth Amendment right to the assistance of counsel, notwith-
standing that the lost appeal may not have had a reasonable probabil-
ity of success").
Next, the government argues that application of a rule requiring an
attorney to file a timely notice of appeal when unequivocally
instructed to do so by his client deprives, in the appeal waiver context,
the government of the benefit of its bargain. According to the govern-
ment, it bargained for Poindexter’s appeal waiver and should receive
the benefit of that bargain.
Plea bargaining is an "important component[ ] of this country’s
criminal justice system." Blackledge v. Allison, 431 U.S. 63, 71,
(1977); see also Brady v. United States, 397 U.S. 742, 752 n.10
(1970) (recognizing that 90 to 95% of all criminal convictions involve
guilty pleas). As the Supreme Court recognized in Blackledge,
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[p]roperly administered, they can benefit all concerned. The
defendant avoids extended pretrial incarceration and the
anxieties and uncertainties of a trial; he gains a speedy dis-
position of his case, the chance to acknowledge his guilt,
and a prompt start in realizing whatever potential there may
be for rehabilitation. Judges and prosecutors conserve vital
and scarce resources. The public is protected from the risks
posed by those charged with criminal offenses who are at
large on bail while awaiting completion of criminal proceed-
ings.
Blackledge, 431 U.S. at 71. "Plea bargains rest on contractual princi-
ples," and, thus, each party to a plea agreement should receive the
benefit of their respective bargain. United States v. Ringling, 988 F.2d
504, 506 (4th Cir. 1993).
Appeal waivers also play an important role in the plea bargaining
process. They not only alleviate the government of the burden of a
costly appeal, but they also preserve the finality of judgments and
sentences. Wiggins, 905 F.2d at 54; see also United States v. Blick,
408 F.3d 162, 167-68 (4th Cir. 2005) (discussing the importance of
appeal waivers). This court has enforced appeal waivers in a number
of cases involving a variety of circumstances. See, e.g., United States
v. Johnson, 410 F.3d 137, 151-53 (4th Cir.), cert. denied, 126 S. Ct.
461 (2005); Blick, 408 F.3d at 169-73; United States v. General, 278
F.3d 389, 399-401 (4th Cir. 2002); United States v. Brown, 232 F.3d
399, 402-06 (4th Cir. 2000); United States v. Brock, 211 F.3d 88, 92
n.6 (4th Cir. 2000). We will enforce an appeal waiver so long as the
waiver is knowing and intelligent and the issue sought to be appealed
falls within the scope of the appeal waiver. Blick, 408 F.3d at 168.
Finally, we have "refused to enforce valid appeal waivers for a nar-
row class of claims, . . . based on our determination that those claims
were not within the scope of the waiver." Id. at 171 (citation and
internal quotation marks omitted). This narrow class of claims
involves errors that the defendant "could not have reasonably contem-
plated" when the plea agreement was executed. Id. at 172; see also
United States v. Broughton-Jones, 71 F.3d 1143 (4th Cir. 1995) (hold-
ing that a valid appeal waiver in which the defendant waived her right
to appeal her sentence on the grounds specified in 18 U.S.C. § 3742
did not preclude her from asserting on appeal that a restitution order
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to which she had formally agreed was not authorized by the applica-
ble statute); United States v. Attar, 38 F.3d 727, 732-33 (4th Cir.
1994) (noting that a defendant who agreed to a general appeal waiver
did not waive his right to appeal his sentence on the ground that the
proceedings following the entry of his guilty plea were conducted in
violation of his Sixth Amendment right to counsel); United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992) (noting that a "defendant
could not be said to have waived his right to appellate review of a
sentence imposed in excess of the maximum penalty provided by stat-
ute or based on a constitutionally impermissible factor such as race").
In the typical appeal waiver case, the government and the defen-
dant enter into a plea agreement, wherein the defendant agrees to
plead guilty and waive some or all of his appellate rights (including
sometimes the right to pursue § 2255 relief) in exchange for the gov-
ernment’s agreement to dismiss some of the charges pending against
the defendant or to seek a lower sentence than the defendant could
have faced had a judge or jury convicted him after a trial. After the
defendant pleads guilty in the Rule 11 proceeding and the district
court enters judgment, the case moves to the appellate phase.
In preparation for the appellate phase of the case, an attorney in an
appeal waiver case still owes important duties to the defendant. First
and foremost, the attorney, as recognized in Flores-Ortega, has the
duty to respect the appellate wishes of his client by filing a timely
notice of appeal if he is unequivocally instructed to do so. 528 U.S.
at 476. Second, as further recognized in Flores-Ortega, even if his cli-
ent does not express (or clearly express) a desire to appeal, the attor-
ney may be required to file a timely notice of appeal after appropriate
consultation with the his client. Id. at 478.5
If a notice of appeal is ultimately filed, an attorney has yet other
duties owing to his client. These duties include examining the trial
record and identifying and weighing potential issues for appeal. If the
appropriate review reveals a meritorious issue for appeal, the attorney
is ethically required to prepare a brief on the merits and argue the
5As recognized by the Court in Flores-Ortega, "the better practice is
for counsel routinely to consult with the defendant regarding the possibil-
ity of an appeal." 528 U.S. at 479.
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appeal. If the appropriate review reveals only frivolous issues, the
attorney can file a brief in accordance with Anders v. California, 386
U.S. 738 (1967).6
If a merits brief is filed, the government is free to: (1) raise the
appeal waiver issue and argue that the appeal should be dismissed
based on the waiver; (2) assert that it is no longer bound by the plea
agreement because the defendant’s appeal amounts to a breach of that
agreement; or (3) decline to rely on the appeal waiver and address the
merits, see United States v. Metzger, 3 F.3d 756, 757-58 (4th Cir.
1993) (holding that, if the government has failed to assert the waiver
as a bar to the appeal, the government waives reliance on the waiver).
If an Anders brief is filed, the government is free to file a responsive
brief raising the waiver issue (if applicable) or do nothing, allowing
this court to perform the required Anders review. Of course, if the
defendant files pro se submissions raising issues within the scope of
the appeal waiver while his Anders brief is pending, the government
is free to raise the waiver issue at that time. In either the case of a
merits brief or the case of an Anders brief, the government receives
the benefit of its bargain, as it is allowed to raise the appeal waiver
issue if it so desires.
Following an unsuccessful appeal (or in the case of no appeal at
all), the case moves on to the collateral phase, wherein the defendant
may file a motion pursuant to § 2255. If the defendant raises issues
covered by the appeal waiver, the government is free to argue that the
district court’s consideration of the issues are covered by the appeal
waiver or that it is no longer bound by the plea agreement because the
defendant is raising issues covered by the waiver. Cf. Williams v.
United States, 396 F.3d 1340, 1342 (11th Cir.) (holding that a valid
sentence-appeal waiver, entered into voluntarily and knowingly, pur-
suant to a plea agreement, precludes the defendant from attempting
6Anders requires that: (1) appointed counsel who seeks to withdraw
because no nonfrivolous issues exist for review must submit a brief refer-
encing anything in the record that arguably could support an appeal; (2)
a copy of that brief be furnished to the defendant; and (3) after providing
the defendant with an opportunity to respond, the appellate court must
conduct an independent and complete examination of the proceedings to
determine if further review is merited. 386 U.S. at 744.
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to attack, in a collateral proceeding, the sentence through a claim of
ineffective assistance of counsel during sentencing), cert. denied, 126
S. Ct. 246 (2005); United States v. White, 307 F.3d 336, 341-44 (5th
Cir. 2002) (same); Garcia-Santos v. United States, 273 F.3d 506, 508-
09 (2d Cir. 2001) (same); Davila v. United States, 258 F.3d 448, 451-
52 (6th Cir. 2001) (same); United States v. Cockerham, 237 F.3d
1179, 1183-87 (10th Cir. 2001) (same); Mason v. United States, 211
F.3d 1065, 1069-70 (7th Cir. 2000) (same). The government can also
ignore the appeal waiver and address the merits of the § 2255 motion.
Thus, as in the context of an appeal, the government receives the ben-
efit of its bargain on collateral review, as it is allowed to raise the
appeal waiver issue if it so desires.
In this particular case, the government is seeking more than it bar-
gained. It wants Poindexter to lose his right to appeal.7 The govern-
ment also wants Poindexter to lose altogether the assistance of
counsel at the important stage of determining whether to pursue an
appeal.8 The government wants all of this even though, if Poindexter
is ultimately allowed to appeal, the government will still receive the
benefit of its bargain, as it will be able to raise the appeal waiver issue
on appeal.
We have refused to enforce appeal waivers in cases that involve
errors that the defendant "could not have reasonably contemplated"
when the plea agreement was executed. Blick, 408 F.3d at 172. At the
time he executed the plea agreement, it cannot be said that, by agree-
7The government seeks this even though, at the time the parties exe-
cuted the plea agreement, the parties understood that an appeal was pos-
sible, at a minimum, attacking either the judgment of conviction or the
validity of the plea. As noted earlier, the waiver executed by Poindexter
only applied to issues related to his sentence.
8Under the Federal Rules of Appellate Procedure, a defendant has ten
days to appeal following the entry of judgment. Fed. R. App. P.
4(b)(1)(A). The ten-day period is mandatory and jurisdictional. United
States v. Robinson, 361 U.S. 220, 224 (1960). The assistance of counsel
is essential to the defendant during this ten-day period, because it is
through the assistance of counsel that the defendant can make an
informed decision concerning whether there are viable issues to raise on
appeal.
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ing to waive his right to appeal his sentence, Poindexter was agreeing
to waive the right to the effective assistance of counsel in pursuing
an appeal. To hold otherwise, we would have to conclude that, at the
time he executed the plea agreement, Poindexter was agreeing to
forego an appeal altogether. Obviously, we are not at liberty to inti-
mate such a conclusion, which would undermine the Supreme Court’s
holdings in Flores-Ortega and Anders.
The government also argues that, if we place limits on a district
court’s ability to dismiss a meritless § 2255 motion, the number of
§ 2255 motions filed in the district courts will dramatically increase.
With all due respect to the position taken by the government, we do
not see the workload of our district courts increasing. Under our
approach, when a defendant brings a § 2255 claim based on his attor-
ney’s failure to file a requested notice of appeal, the district court
should hold a hearing if it is unclear in the record whether the attor-
ney was so instructed. Under the government’s approach, a defendant
is free to file a § 2255 motion, but the motion is subject to dismissal
at that time if the court finds that any appeal would have been covered
by the appeal waiver or if the court finds that the issues raised in the
motion are meritless. In both instances, the court is burdened by the
filing of a § 2255 motion. Moreover, we are skeptical that a simple
evidentiary hearing is more complicated than a merits assessment of
every issue raised in the § 2255 motion.
III
Our decision today is consistent with the four United States Courts
of Appeal that have concluded that an attorney renders constitution-
ally ineffective assistance of counsel if he fails to follow his client’s
unequivocal instruction to file a notice of appeal even though the
defendant may have waived his right to appeal. See Sandoval-Lopez,
409 F.3d at 1195-99 (concluding that an ineffective assistance of
counsel claim is established where an attorney fails to file a requested
notice of appeal even where a waiver of appeal is present); see also
United States v. Campusano, 442 F.3d 770, 772-77 (2d Cir. 2006)
(same); Gomez-Diaz v. United States, 433 F.3d 788, 791-94 (11th Cir.
2005) (same); United States v. Garrett, 402 F.3d 1262, 1265-67 (10th
Cir. 2005) (same). In each of these cases, the court concluded, as we
do today, that its decision was compelled by the Supreme Court’s
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decision in Flores-Ortega. See Campusano, 442 F.3d at 773-77;
Sandoval-Lopez, 409 F.3d at 1197; Garrett, 402 F.3d at 1266; Gomez-
Diaz, 433 F.3d at 793-94. These cases also recognize, as we do, that
most successful § 2255 movants in the appeal waiver situation obtain
little more than an opportunity to lose at a later date. See, e.g., Cam-
pusano, 442 F.3d at 777. As the court noted in Campusano, "[t]here
will not be many cases in which a defendant whose attorney fails to
file a notice of appeal after a plea agreement and a waiver of appeal,
and whose hypothetical appeal seems meritless during ineffective-
assistance habeas review, eventually prevails." Id. However, as rare
as those instances might be, we cannot take the easy road, say, by
conducting our own independent merits review of Poindexter’s
claims. Cf. Garrett, 402 F.3d at 1265-66 ("Allowing the defendant to
proceed in spite of unpersuasive pro se arguments is not a matter of
formalistic compliance with a technical rule merely postponing the
inevitable denial of relief on the merits. . . . Rather, it serves to safe-
guard[ ] important interests with concrete and potentially dispositive
consequences which can be guaranteed only by the direct-appeal pro-
cess and the concomitant right to counsel.") (citation and internal quo-
tation marks omitted).
In sum, we hold that an attorney is required to file a notice of
appeal when unequivocally instructed to do so by his client, even if
doing so would be contrary to the plea agreement and harmful to the
client’s interests. In this case, although there is a real possibility that
Poindexter will face a higher sentence or even charges related to the
January 21, 2001 incident if he decides to appeal, his right to appeal
cannot be thwarted by attorney error.
Accordingly, the district court’s order denying Poindexter’s § 2255
motion is vacated, and the case is remanded with instructions to hold
an evidentiary hearing to determine whether Poindexter unequivo-
cally instructed his attorney to file a notice of appeal. If his attorney
was so instructed, Poindexter is to be allowed a direct appeal. If his
attorney was not so instructed, the court will have to determine if
Poindexter met his burden of showing that: (1) his attorney had a duty
to consult under Flores-Ortega; (2) his attorney failed to fulfill his
consultation obligations; and (3) he was prejudiced by his attorney’s
failure to fulfill these obligations.
VACATED AND REMANDED
14 UNITED STATES v. POINDEXTER

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