Friday, March 02, 2007

Court finds it has jurisdiction to hear § 2255 petition despite waiver of right to mount collateral attack

In United States v. Shedrick, No. 04-2329 (3d Cir. Feb. 28, 2007), the Third Circuit found that it had jurisdiction to hear an appeal from the denial of a 28 U.S.C. § 2255 petition that raised claims of ineffective assistance of counsel, even though the petitioner had signed a collateral attack waiver. In addition, after finding that ineffective assistance had deprived Sedrick of his right to a direct appeal, the Court reached the merits of that direct appeal and affirmed the sentence.

Shedrick was charged with being a felon in possession of a gun. After police arrested him, two people approached the police and said that Shedrick had shot at their van. Police later arrested the original owner of the gun, who admitted that he had given the gun to Shedrick and implicated Shedrick in dealing crack. Shedrick entered an open guilty plea to the felon-in-possession charge, but at no time did he admit to shooting the van or dealing drugs. In the written plea agreement, Shedrick waived not only his right to direct appeal, but to collateral attack of the proceedings. In pertinent part, the plea agreement permitted Shedrick to raise a direct appeal if the sentencing judge erroneously departed upwards from the Sentencing Guidelines.

While the PSR set Shedrick’s Guidelines range at 46-57 months, the government asked the district court to enhance Shedrick’s offense level by four levels for possessing a firearm in connection with dealing crack, and to depart upward eight levels for shooting the van. At the sentencing hearing, the previous owner of the gun and the driver of the van testified against Shedrick. The district court found them credible, applied the enhancement and the departure, and imposed a 96-month sentence.

Shedrick failed to timely appeal. He filed a § 2255 habeas petition with the district court, alleging that ineffective assistance of counsel caused his failure to timely appeal and stripped him of his right to challenge the departure. The district court denied the petition. The Third Circuit granted a certificate of appealability. The government contended that the waiver deprived the Third Circuit of jurisdiction. The Third Circuit rejected the government’s argument. It held that "[e]nforcing a collateral attack waiver where constitutionally deficient lawyering prevented him from a direct appeal permitted by the waiver would result in a miscarriage of justice. Thus, we have jurisdiction to consider an ineffective-assistance-of-counsel issue."

The Court then reached Shedrick’s two ineffective assistance claims. It rejected the claim that counsel was ineffective at trial for erroneously predicting Shedrick’s likely sentence, as the plea agreement and plea colloquy made clear the statutory maximum and the court’s discretion. The Court then held that under Roe v. Flores-Ortega, 528 U.S. 470 (2000), Shedrick’s counsel rendered ineffective assistance on appeal because (1) Shedrick’s desire to appeal was clear and (2) counsel failed to consult with Shedrick about the appeal.

The Third Circuit consequently granted Shedrick a direct appeal of his sentence. It then heard the merits of the direct appeal and affirmed the sentence, holding that the district court had not erred by applying the departure after finding by a preponderance of the evidence that Shedrick had fired his gun at the van.

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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