United States District Court, S.D. Ohio, Eastern Division
Michael H. Watson Judge
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
a state prisoner, brings the instant motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.
This matter is before the Court on the instant motion,
respondent's response, and the exhibits of the parties.
For the reasons that follow, the Magistrate Judge
RECOMMENDS that the § 2255 motion be
GRANTED on petitioner's claim that he
was denied the effective assistance of counsel due to his
attorney's failure to file an appeal, and that the final
judgment previously entered in this case be
VACATED and that a new judgment be entered,
so that counsel may be appointed to file a timely appeal on
underlying criminal conviction is the result of his August
29, 2016, guilty plea made pursuant to a plea agreement
signed on August 12, 2016. While represented by counsel,
petitioner pled guilty to one count of conspiracy to possess
with intent to distribute five or more kilograms of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(ii), and 846. (Doc. 155). On April 28, 2017, the
Court sentenced petitioner to 120 months imprisonment plus
five years supervised release. (Doc. 354).
December 8, 2017, petitioner filed the instant pro
se motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255, claiming ineffective
assistance of counsel. (Doc. 407). The motion provides,
Bolivar Emilio-Medina, the petitioner, timely requested that
counsel file a Notice of Appeal, but counsel failed to do so.
Petitioner was advised by counsel that no appeal was possible
of the same. On the contrary, the proper approach should have
been that counsel honored the petitioner's request by
filing the Notice of Appeal and then withdraw from the case.
Additionally, the petitioner had not executed a Waiver of
failure by a defense attorney to file a timely appeal after
being requested to do so by his client constitutes the
ineffective assistance of counsel.
The Constitution is violated if a convicted defendant is not
given the right to appeal “by reason of his lack of
knowledge of his right and the failure of his counsel or the
court to advise him of his right to appeal with the aid of
counsel.” Jacobs v. Mohr, 265 F.3d 407, 419
(6th Cir. 2001) (citing Goodwin v. Cardwell, 432
F.2d 521, 522- 23 (6th Cir. 1970)). The defendant has
ultimate authority in making certain fundamental
determinations pertaining to his case, including the right to
appeal. Jones v. Barnes, 463 U.S. 745, 751, 103
S.Ct. 3308, 77 L.Ed.2d 987 (1983). The authority to pursue an
appeal, even one following a guilty plea, is the
defendant's alone. Marrow v. United States, 772
F.2d 525, 530 (9th Cir. 1985).
Wolfe v. Randle, 267 F.Supp.2d 743, 747 (S.D. Ohio
[A] lawyer who disregards specific instructions from the
defendant to file a notice of appeal acts in a manner that is
professionally unreasonable. See Rodriquez v.
United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d
340 (1969); cf. Peguero v. United States,
526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 (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”). This is so
because a defendant who instructs counsel to initiate an
appeal reasonably relies upon counsel to file the necessary
notice. Counsel's failure to do so cannot be considered a
strategic decision; filing a notice of appeal is a purely
ministerial task, and the failure to file reflects
inattention to the defendant's wishes.
Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000).
response to the motion states, in relevant part:
After an extensive investigation by the undersigned and
counsel for Petitioner, both parties are satisfied that the
evidence supports that, due to inadvertence and a series of
personnel changes in the law office for Petitioner's
trial counsel, Petitioner's timely request for a notice
of appeal of his ...