United States of America v. DESMOND WRIGHT a/k/a DAY-DAY, Desmond Wright

Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,*
sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3764
UNITED STATES OF AMERICA
v.
DESMOND WRIGHT
a/k/a DAY-DAY,
Desmond Wright,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 01-cr-00005-2)
District Judge: Honorable William H. Yohn, Jr.
Submitted Under Third Circuit LAR 34.1(a)
April 27, 2006
Before: AMBRO and FUENTES, Circuit Judges,
and IRENAS, District Judge*
(Opinion filed May 11, 2006)
OPINION

-- 1 of 6 --

2
AMBRO, Circuit Judge
Petitioner-appellant Desmond Wright (“Wright”) appeals from an order of the
United States District Court for the Eastern District of Pennsylvania denying his habeas
corpus motion to vacate, set aside, or correct his sentence. For the reasons that follow,
we affirm.
I.
As we write for the parties, only a brief summary of pertinent facts and procedural
history is necessary. On October 9, 2001, Wright pled guilty to many federal offenses,
including: conspiracy to commit armed bank robbery; armed bank robbery; using,
carrying, and discharging a firearm during and in relation to an armed bank robbery;
using fire to commit a felony; malicious destruction of a building involved in interstate
commerce; conspiracy to carjack; attempted carjacking; using, carrying and brandishing a
firearm during and in relation to the conspiracy to carjack and attempted carjacking; and
possession of firearms by a convicted felon. On the eve of sentencing, Wright filed a
motion to withdraw his guilty plea. After a hearing, the District Court denied that motion.
It then imposed a sentence at the bottom of the Guidelines range followed by mandatory
consecutive sentences for a 750-month term of imprisonment.
Wright did not appeal. A letter from Wright to the District Court Clerk, received
May 23, 2002, was interpreted as a notice of appeal but was dismissed on September 30,
2002 as untimely. In the interim, on September 8, 2002, Wright filed a petition for a writ

-- 2 of 6 --

We review de novo whether Wright received ineffective assistance of counsel.1
United States v. Kaufman, 109 F.3d 186, 187 (3d Cir. 1997).
3
of habeas corpus pursuant to 28 U.S.C. § 2255, alleging, inter alia, that he suffered
ineffective assistance of counsel because his trial counsel had failed to file a direct
appeal. The District Court held an evidentiary hearing, found no merit in Wright’s
claims, and denied his petition. We issued a certificate of appealability on the issue of
whether counsel was ineffective for failing to file an appeal.
II.
Because it is undisputed that Wright’s trial counsel did not consult with him
regarding his right to appeal post-sentencing, our determination of this case is controlled
by Roe v. Flores-Ortega, 528 U.S. 470 (2000). There, the Supreme Court laid out the1
“proper framework for evaluating an ineffective assistance of counsel claim, based on
counsel’s failure to file a notice of appeal with respondent’s consent.” Id. at 473.
Because the question concerned whether counsel’s representation was constitutionally
defective, the Court held that the familiar two-part test announced in Strickland v.
Washington, 466 U.S. 668 (1984), governed its inquiry. 528 U.S. at 476-77. Applying
the Strickland standard to the particular facts before it, the Court determined that “counsel
had a constitutionally imposed duty to consult with the defendant about an appeal when
there is reason to think either (1) that a rational defendant would want to appeal (for
example, because there are nonfrivolous grounds for appeal), or (2) that this particular

-- 3 of 6 --

4
defendant reasonably demonstrated to counsel that he was interested in appealing.” Id. at
480.
The Court further explained that it “employ[ed] the term ‘consult’ to convey a
specific meaning—advising the defendant about the advantages and disadvantages of
taking an appeal, and making a reasonable effort to discover the defendant’s wishes.” Id.
at 478. Additionally, it instructed that courts undertaking this inquiry, as with all
ineffective assistance claims, “take into account all the information counsel knew or
should have known.” Id. at 480 (citing Strickland, 466 U.S. at 690). With respect to
Strickland’s prejudice prong, the Court applied a harmless error inquiry, and held that
relief could not be granted unless the defendant could “demonstrate that there is a
reasonable probability that, but for counsel’s deficient failure to consult with him about
an appeal, he would have timely appealed.” Id. at 484.
Wright argues that Flores-Ortega stands for the proposition “that counsel had a
constitutionally imposed duty to consult with a defendant about an appeal . . . .” The
adoption of such a bright-line rule, however, was expressly rejected in that case: “[W]e
cannot say, as a constitutional matter, that in every case counsel’s failure to consult with
the defendant about an appeal is necessarily unreasonable and therefore deficient.” Id. at
479 (emphasis in text) (concluding “[w]e . . . reject a bright-line rule that counsel must
always consult with the defendant regarding an appeal”). Moreover, the Court provided
an example of when a “mechanistic [bright-line] rule” would be inconsistent with both its

-- 4 of 6 --

5
“decision in Strickland and common sense.” Id.
For example, suppose that a defendant consults with counsel; counsel
advises the defendant that a guilty plea probably will lead to a 2 year
sentence; the defendant expresses satisfaction and pleads guilty; the court
sentences the defendant to 2 years’ imprisonment as expected and informs
the defendant of his appeal rights; the defendant does not express any
interest in appealing, and counsel concludes that there are no nonfrivolous
grounds for appeal. Under these circumstances, it would be difficult to say
that counsel is “professionally unreasonable,” as a constitutional matter, in
not consulting with such a defendant regarding an appeal. Or, for example,
suppose a sentencing court’s instructions to a defendant about his appeal
rights in a particular case are so clear and informative as to substitute for
counsel’s duty to consult.
Id. at 479-80 (internal citations omitted).
That is the case here. As noted, the District Court held an evidentiary hearing. At
the conclusion of that hearing, it credited defense counsel’s testimony that he consulted
with Wright about his rights to trial and a plea, discussed the effect of each and his
limited rights to appeal, advised Wright of the consequences of pleading guilty, discussed
the Sentencing Guidelines, and was advised by Wright that he wished to plead guilty.
The record also establishes that Wright received the shortest sentence possible under the
Guidelines and that the District Court fully and completely advised Wright of his right to
appeal both during the plea colloquy and immediately after he was sentenced.
Although Wright testified that he wanted to appeal because counsel had a strategy
on appeal that would allow his consecutive sentences to run concurrently, this claim was
found to be not credible by the District Court. Indeed, Wright’s sentences ran
consecutively as a matter of law—a fact that no appeal could overcome. We cannot

-- 5 of 6 --

6
conclude that the District Court’s finding that Wright did not express any interest in an
appeal was clearly erroneous. United States v. Gambino, 864 F.2d 1064, 1071 n.3 (3d
Cir. 1988) (noting that the District Court’s factual findings following an evidentiary
hearing in a § 2255 proceeding are subject to clearly erroneous review). Nor can we
disagree with defense counsel that Wright received the benefit of his bargain and there is
no nonfrivolous ground for an appeal. Accordingly, under Flores-Ortega, counsel’s
actions were not unreasonable and Wright is entitled to no relief.
* * * * *
For the foregoing reasons, we affirm the judgment of the District Court.

-- 6 of 6 --