United States District Court, W.D. Virginia, Abingdon Division
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for United States; Dennis E. Jones, Abingdon,
Virginia, for Defendant.
P. Jones United States District Judge.
defendant has filed a motion seeking relief under 28 U.S.C.
§ 2255 in which he contends that his trial counsel
provided ineffective assistance by failing to note an appeal.
I appointed counsel and held an evidentiary hearing, after
which I took the § 2255 motion under advisement. I will
now dismiss the § 2255 motion.
was charged in Count One of the Indictment with conspiring to
manufacture, distribute, and possess with the intent to
distribute methamphetamine and oxycodone in violation of 21
U.S.C. § 841, and using a communication facility in
committing a felony controlled substance offense in violation
of 21 U.S.C. § 843(b). Count Two charged him with
conspiracy to launder money in violation of 18 U.S.C. §
1956(a)(1)(A)(i), (a)(1)(B)(i), (h). After a seven-day trial,
a jury found Callahan guilty of Counts One and Two. He was
sentenced by this court on April 17, 2018, to a term of 324
months imprisonment, consisting of 324 months on Count One
and 240 months on Count Two, to be served concurrently. In
his § 2255 motion, Callihan contends that his trial
counsel was ineffective because he failed to note an appeal
and did not adequately advise him about his right to appeal.
state a viable claim for relief under § 2255, a
defendant must prove: (1) that his sentence was
“imposed in violation of the Constitution or laws of
the United States”; (2) that “the court was
without jurisdiction to impose such sentence”; or (3)
that “the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). The petitioner bears
the burden of proving grounds for a § 2255 motion by a
preponderance of the evidence. Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958).
defendants have a Sixth Amendment right to effective legal
assistance. Strickland v. Washington, 466 U.S. 668,
687 (1984). Ineffective assistance claims, however, are not
lightly granted - “[t]he benchmark for judging any
claim of ineffectiveness must be whether counsel's
conduct so undermined the proper functioning of the
adversarial process that the [proceeding] cannot be relied on
as having produced a just result.” Id. at 686.
To that end, a defendant must satisfy a two-prong analysis
showing both that counsel's performance fell below an
objective standard of reasonableness and that the defendant
was prejudiced by counsel's alleged deficient
performance. Id. at 687. To satisfy the prejudice
prong of Strickland, a defendant must show that
there is a reasonable probability that, but for counsel's
unprofessional error, the outcome of the proceeding would
have been different. Id. at 694.
the following findings of fact based on the evidence
presented at the evidentiary hearing, based on my opportunity
to assess the credibility of the witnesses.
conclusion of Callihan's sentencing hearing, I advised
Callihan of his right to appeal and of the deadline for
filing a notice of appeal. I told him, on the record, that
the clerk would file an appeal on his behalf if requested and
that he could apply for leave to appeal without prepayment if
he could not afford the cost of filing an appeal.
concedes that he did not ask his counsel to file a notice of
appeal. He also admits that when his attorney visited him in
jail to review his presentence report, they never discussed
an appeal. Callihan testified that after his sentencing, he
expressed to his attorney some relief that he still had the
possibility of appealing. His counsel, however, denies that
Callihan mentioned anything about an appeal following his
sentencing, and Callihan has offered no evidence to
corroborate his account. Based on the evidence presented and
my opportunity to assess the witnesses' credibility, I
find that Callihan and his counsel did not discuss an appeal
following the sentencing hearing.
attorney renders constitutionally ineffective assistance of
counsel if he fails to follow his client's unequivocal
instruction to file a notice of appeal . . . .”
United States v. Poindexter, 492 F.3d 263, 273 (4th
Cir. 2007). When a defendant “neither instructs counsel
to file an appeal nor asks that an appeal not be taken,
” I must first determine “whether counsel in fact
consulted with the defendant about an appeal.” Roe
v. Flores-Ortega, 528 U.S. 470, 478 (2000). Consulting
in this context requires “advising the defendant about
the advantages and disadvantages of taking an appeal, and
making a reasonable effort to discover the defendant's
wishes.” Id. If counsel consulted with his
client about filing an appeal, his performance is
unreasonable only if he failed to follow the client's
clear instructions. If, however, he did not consult with his
client, I must determine whether that failure to consult
amounts to deficient performance. The defendant also must
establish prejudice under Strickland, meaning he
must show “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. “[W]hen counsel's
constitutionally deficient performance deprives a defendant
of an appeal that he otherwise would have taken, the
defendant has made out a successful ineffective assistance of
counsel claim entitling him to an appeal.” Id.
“The defendant need not show that his appeal has
merit.” Gordon v. Braxton, 780 F.3d 196, 200
(4th Cir. 2015).
that Callihan's trial counsel did not consult with him
about an appeal. I further find, however, that this failure
did not amount to deficient performance and did not prejudice