Joseph A. DiRuzzo, III OF Fuerst Ittleman convinces Third Circuit to reverse District Court regarding ineffective assistance of counsel allegations

May 07, 2012   
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On May 2, 2012, Circuit Judge Aldisert, in writing for a panel of the U.S. Court of Appeals for the Third Circuit in the case of United States v. James Russell, reversed the decision of the U.S. District Court for the Eastern District of Pennsylvania, and remanded the case for the District Court to hold an evidentiary hearing on the Appellants ineffective assistance of counsel claim. A full copy of the opinion is available here.

The facts are as follows:  James Russell appealed the judgment of the United States District Court for the Eastern District of Pennsylvania, entered on November 17, 2010, denying Russells motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.  At the April 19, 2007 sentencing hearing, the District Court imposed a term of 41 months imprisonment, but did not specify whether the term was to run concurrently or consecutively. Russell timely appealed his sentence to the Third Circuit. The government agreed that the case should be remanded, and, based upon the agreement of the parties, the Third Circuit dismissed Russells appeal on December 20, 2007.

Russell was subsequently resentenced. At that time, Russells newly appointed attorney, Joseph Mitchell III, urged the District Court to impose a concurrent sentence and to show leniency. Mitchell also urged the District Court to grant the renewed motion for a downward departure. The District Court denied the motion and imposed a sentence of 33 months, to run consecutively to Russells other federal sentence.  At the conclusion of the hearing, Russell informed the Court: “And for the record, Im satisfied with the sentence. Thank you. And I would not be filing an appeal on that. Thank you very much.” Russell soon realized, however, that he was not, in fact, satisfied with his sentence. Russell asserts that two days after the sentencing hearing, on April 9, 2009, he notified Mitchell that he had changed his mind and directed him to file an appeal on his behalf.  Mitchell did not file an appeal.

On October 13, 2009, Russell filed a pro se § 2255 motion presenting six arguments: (1) that the District Court failed to properly apply the Sentencing Guidelines; (2) that Mitchell was ineffective for failing to argue that the Guidelines required a concurrent sentence; (3) that the prosecution misled the District Court regarding its authority to impose a concurrent sentence; (4) that Mitchell was ineffective for failing to counter the governments argument; (5) that the District Court erred in failing to credit his time already spent in federal custody toward his sentence; and (6) that Mitchell was ineffective for failing to seek an award of such credit. Russell wrote on the form motion that none of the grounds were presented previously because his “counsel Ëœrefused to raise them.”

In its November 15, 2010 opinion and order, the District Court denied Russells motion. In relevant part, the Court explained the effect of Russells counsels failure to file an appeal as follows: 

Russell alleges that his failure to directly appeal is the fault of his counsel, who refused to raise the issues on appeal. “A successful claim of ineffective assistance of counsel . . . satisfies the Ëœcause prong of a procedural default inquiry.” United States v. Garth, 188 F.3d 99, 107 (3d Cir. 1999) (citation omitted). Because the Court finds that Russell cannot satisfy the “prejudice” prong of the default inquiry, it will not consider whether Russell has demonstrated requisite cause.

On May 19, 2011, the Third Circuit granted Russells application for a certificate of appealability, limited to the following issue: “whether the counsel was ineffective for failing to file a direct appeal.”

The Third Circuit, in response to the governments contention that the certificate of appealability was improvidently granted, stated:  We decline the governments invitation to review our grant of the certificate of appealability. See Gatlin v. Madding, 189 F.3d 882, 887 (9th Cir. 1999), available here. (“[O]nce a [certificate of appealability] has been issued without objection by this court, the procedural threshold for appellate jurisdiction has been passed and we need not revisit the validity of the certificate in order to reach the merits.”)

Addressing the merits of Russells claim of ineffective assistance of counsel, the Third Circuit stated:  “[W]hen counsels 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.” Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000), available here.

A case in which a lawyer fails to file a direct appeal, contrary to the clients instructions, “is quite different from a case in which it is claimed that counsels performance was ineffective. As [the Supreme Court] stated in Strickland, the Ëœ[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.” Penson v. Ohio, 488 U.S. 75, 88 (1988), available here; citing Strickland v. Washington, 466 U.S. 668, 692 (1984)), available here.

The Third Circuit concluded that:  “On the record before us, however, we are unable to adjudicate the merits of this claim.” As a result, “Inasmuch as these questions can be decided only after an evidentiary hearing, however, and because the district court did not hold such a hearing, we shall remand the case for this purpose.” United States v. Ackerman, 619 F.2d 285, 288 (3d Cir. 1980), available here.

The attorneys at Fuerst Ittleman have extensive experience litigating both civil and criminal appeals before the United States Circuit Courts of Appeals.  You can contact us at 305.350.5690 or by email at