The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Sharice C. Vann's ("Vann") motion for relief pursuant to 28 U.S.C. § § 2255 (Doc. 1) and its amendment (Doc. 3). The government has responded to the motion (Doc. 10), and Vann has replied to that response (Doc. 11).
In September 2006, Vann was indicted on one count of conspiring to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) & 846, and on January 8, 2007, Vann pled guilty without a plea agreement to that charge. On April 12, 2007, the Court held a sentencing hearing at which Vann's counsel withdrew all but one objection to the Presentence Investigation Report ("PSR") and the government conceded the remaining objections. The government recommended the high end of the guideline range, but the Court sentenced Vann toward the middle of the range -- 204 months in prison. Judgment was entered on the docket on April 17, 2007.
Although she did not plead guilty pursuant to a plea agreement, both before and after her sentencing, Vann cooperated with the government in hopes of obtaining a reduction of her sentence pursuant to Federal Rule of Criminal Procedure 35(b). Although the Court warned her that she could file a notice of appeal within ten days after entry of judgment, neither Vann nor her counsel filed a notice of appeal. Vann continued to cooperate with the government after her appeal period expired by participating in a proffer interview with counsel present on May 4, 2007, 13days after entry of judgment. On June 22, 2007, 66 days after entry of judgment and 49 days after her last proffer, Vann filed a pro se notice of appeal. The Court of Appeals dismissed Vann's appeal for lack of jurisdiction due to the untimeliness of her notice of appeal. The government declined to file a motion for a sentence reduction pursuant to Rule 35(b) within the year after her sentencing.
Several months after her appeal was dismissed, Vann filed this timely motion to vacate her sentence pursuant to 28 U.S.C. § 2255. In it, she makes a number of arguments, but a threshold argument deserves immediate attention. She alleges her counsel was constitutionally deficient because he did not explain after her sentencing the advantages and disadvantages of appealing or advise her whether there were meritorious grounds for appeal and because he did not take her calls to his office during the appeal period. She concedes she never asked her counsel to file a notice of appeal on her behalf, either within or after the appeal period.
The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). "Relief under § 2255 is available only for errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental defect which inherently results in a complete miscarriage of justice." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). Vann claims that her Sixth Amendment right to effective assistance of counsel was violated when her counsel did not file a notice of appeal of her conviction and sentence.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. A party claiming ineffective assistance of counsel bears the burden of showing (1) that his trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000).
An attorney's failure to file a notice of appeal when timely requested to do so falls below objective standards for reasonably effective representation and, in fact, is tantamount to no representation at all on appeal. In such circumstances, a petitioner is not required to show prejudice under the Strickland test. Such abandonment is a per se violation of the petitioner's Sixth Amendment right to counsel. United States v. Nagib, 56 F.3d 798, (7th Cir. 1995), Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994).
Vann makes no allegation that she timely requested her counsel to file a notice of appeal. Thus, there is no basis to award Vann the right to proceed as if on direct appeal by virtue of Castellanos. Whether she is entitled to such relief under Roe v. Flores-Ortega, 528 U.S. 470 (2000),*fn1 or Corral v. United States, 498 F.3d 470 (7th Cir. 2007),*fn2 is yet to be decided.
For the foregoing reasons, the Court RESERVES RULING on Vann's § 2255 motion (Doc. 1) and its amendment (Doc. 3) and ORDERS the government to respond on or before May 1, 2009, to Vann's other claims in her § 2255 motion and its amendment that support her request to proceed as if on direct appeal. Should Vann be granted such relief on any of those grounds, the remainder of her § 2255 motion will be ...