*

The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District

of Kentucky, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0222p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ROBERT DAN CAMPBELL,

 Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

 Respondent-Appellee.

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No. 11-3233

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

Nos.: 3:08-cr-196-1; 3:10-cv-2818—James G. Carr, District Judge.

Decided and Filed: July 19, 2012 

Before: SILER and MOORE, Circuit Judges; VAN TATENHOVE, District Judge.*

_________________

COUNSEL

ON BRIEF: Thomas A. Karol, UNITED STATES ATTORNEY’S OFFICE, Toledo,

Ohio, for Appellee. Robert Dan Campbell, Wapakoneta, Ohio, pro se.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant Robert Dan

Campbell pleaded guilty to a one-count information charging him with conspiracy to

commit wire and mail fraud in violation of 18 U.S.C. §§ 1341, 1343, by engaging in a

mortgage-fraud scheme that violated 18 U.S.C. § 371. As part of the plea agreement,

Campbell partially waived the right to appeal his conviction and sentence. In a motion

to vacate under 28 U.S.C. § 2255, Campbell nevertheless contended, among other things,

1
No. 11-3233 Campbell v. United States Page 2

1

In full, the appeal-waiver provision is as follows:

Defendant acknowledges having been advised by counsel of Defendant’s rights, in

limited circumstances, to appeal the conviction or sentence in this case, including the

appeal right conferred by 18 U.S.C. § 3742, and to challenge the conviction or sentence

collaterally through a post-conviction proceeding, including a proceeding under

28 U.S.C. § 2255. Defendant expressly waives those rights except as reserved below.

Defendant reserves the right to appeal: (a) any punishment in excess of the statutory

maximum; (b) any sentence to the extent it exceeds the maximum of the sentencing

range determined under the advisory Sentencing Guidelines in accordance with the

sentencing stipulations and computations in this agreement, using the Criminal History

Category found applicable by the Court. Nothing in this paragraph shall act as a bar to

the defendant perfecting any legal remedies defendant may otherwise have on appeal

or collateral attack respecting claims of ineffective assistance of counsel, voluntariness

of this plea and accompanying waivers, or prosecutorial misconduct.

R. 7 (Plea Agreement ¶ 10, at 5).

that his attorney’s failure to file an appeal despite Campbell’s alleged express instruction

to do so amounted to ineffective assistance of counsel. Without conducting an

evidentiary hearing to answer the factual question presented by Campbell’s

allegations—namely, whether Campbell did, in fact, unequivocally instruct his attorney

to file an appeal on his behalf—the district court denied Campbell’s § 2255 motion. We

granted a certificate of appealability on the sole issue of whether an attorney’s failure to

file a notice of appeal under these specific circumstances constitutes ineffective

assistance of counsel. We hold that it does. Accordingly, we VACATE the district

court’s judgment and REMAND the case for further proceedings consistent with this

opinion.

I. BACKGROUND

On April 23, 2008, the U.S. Attorney for the Northern District of Ohio issued a

felony information alleging that Campbell, a Lima, Ohio real-estate investor, participated

in a mortgage-fraud conspiracy by, among other things, falsifying mortgage documents,

covertly paying borrowers’ closing costs, and “flip[ping]” properties bought by a straw

purchaser and resold to Campbell at an inflated price. R. 1 (Information ¶¶ 3–4, at 2).

At his arraignment, Campbell agreed to waive indictment and plead guilty to the charges

as set forth in the information. Pursuant to the plea agreement, Campbell also agreed,

with only a few exceptions, to waive the right to challenge his conviction or sentence on

either direct appeal or collateral review.1

 The magistrate judge conducting the plea
No. 11-3233 Campbell v. United States Page 3

2

The district court deferred sentencing for approximately two years to permit the sale of certain

properties Campbell owned.

hearing confirmed Campbell’s understanding of the waiver, R. 10 (Plea Hr’g Tr. at 22),

and concluded that Campbell voluntarily and knowingly entered the plea, id. at 42.

The district court held Campbell’s sentencing hearing on September 20, 2010.2

Based on a total offense level of 13 and a criminal history category of I, the district court

determined the applicable Guideline range to be 12 to 18 months in prison.

R. 46 (Sentencing Hr’g Tr. at 16). The district court then imposed a below-Guidelines

sentence of eight months in prison and a $35,000 fine. Id. at 21. At the end of the

hearing, the district court reaffirmed Campbell’s understanding of the appeal waiver, but

informed Campbell that to the extent that he did have grounds to appeal, he needed to

do so within ten days of the entry of final judgment. Id. at 25. No notice of appeal was

filed.

On December 13, 2010, Campbell filed a motion to vacate, set aside, or correct

a sentence pursuant to 28 U.S.C. § 2255. The motion raised four issues: (1) whether

Campbell was denied effective assistance of counsel when his attorney failed to file a

requested notice of appeal; (2) whether counsel was ineffective in permitting Campbell

to plead guilty when, according to Campbell, he is actually innocent; (3) whether the

sentence imposed was “illegal” and procedurally unreasonable; and (4) whether the

prosecutor violated Campbell’s rights under Brady v. Maryland, 373 U.S. 83 (1963), or

otherwise engaged in prosecutorial misconduct. Campbell’s motion also noted the

usefulness of an evidentiary hearing to resolving the merits of his claims. Without

conducting any hearing, the district court rejected all four of Campbell’s claims. With

respect to the first issue, the district court held that because the plea agreement contained

an appeal-waiver provision with limited, inapplicable exceptions, Campbell’s attorney’s

failure to file an appeal “did not deprive [Campbell] of [his] Sixth Amendment rights.”

R. 3 (Dist. Ct. Op. at 3). The district court reasoned that, because of the broad waiver

provision, any appeal would have been dismissed; thus, the district court held that

Campbell could not demonstrate ineffective assistance under the standard set forth in
No. 11-3233 Campbell v. United States Page 4

Strickland v. Washington, 466 U.S. 668 (1984). Finding no basis for a good-faith appeal

with respect to this or any of Campbell’s other claims, the district court declined to issue

a certificate of appealability under 28 U.S.C. § 2253(c). On review, we agreed with the

district court’s assessment of claims two through four, but, citing a circuit split and the

absence of precedential Sixth Circuit authority on the issue of the attorney’s failure to

file a requested notice of appeal, see Sarlog v. United States, 422 F. App’x 399, 403

(6th Cir. 2011), we granted the certificate of appealability solely with respect to the

question now before us. Campbell v. United States, No. 11-3233, order at

3 (6th Cir. Sept. 22, 2011).

II. ANALYSIS

We review de novo the district court’s denial of a motion to vacate under

28 U.S.C. § 2255, but review the district court’s factual findings only for clear error.

United States v. Doyle, 631 F.3d 815, 817 (6th Cir. 2011). “Ineffective assistance of

counsel claims are mixed questions of law and fact,” which we also review de novo. Id.

Although we review a district court’s refusal to conduct an evidentiary hearing with

respect to a defendant’s § 2255 motion only for abuse of discretion, such a hearing “is

required unless the record conclusively shows that the petitioner is entitled to no relief.”

Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (internal quotation marks

omitted).

Our analytical starting point is Strickland v. Washington, 466 U.S. 668, 687

(1984), in which the Supreme Court held that criminal defendants have a Sixth

Amendment right to a “reasonably effective” attorney and established the now-familiar

test for ineffective assistance of counsel. Specifically, to prevail on an ineffectiveassistance claim, defendants must show (1) “that counsel’s representation fell below an

objective standard of reasonableness,” id. at 688, and (2) “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different,” id. at 694. In a guilty plea context “the defendant must

show that there is a reasonable probability that, but for counsel’s errors, he would not
No. 11-3233 Campbell v. United States Page 5

3

Whether Campbell actually made this request is unclear from the record. In its response to

Campbell’s § 2255 motion, the government refused to concede that Campbell gave his attorney such an

instruction and instead argued that the fact was irrelevant to the ineffective-assistance question.

R. 43 (Resp. in Opp’n to Mot. Filed Under 28 U.S.C. § 2255, at 8 n.5). Because it adopted the

government’s reasoning, the district court never made a factual finding with respect to this issue.

have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474

U.S. 52, 59 (1985).

In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court applied the

Strickland test to a case involving an attorney’s failure to file a notice of appeal.

Although Flores-Ortega addressed an attorney’s obligations with respect to counseling

a defendant who had not waived any appeal rights and who had not clearly expressed a

desire to appeal, the Court’s reasoning began with the long-established rule “that a

lawyer who disregards specific instructions from the defendant to file a notice of appeal

acts in a manner that is professionally unreasonable.” Id. at 477. Moving to Strickland’s

prejudice prong, the Court further held that “when 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. at 484. In reaching its conclusion, the Court rejected the proposition

that a defendant must always establish prejudice by showing possible success on the

merits, noting that “it is unfair to require an indigent, perhaps pro se, defendant to

demonstrate that his hypothetical appeal might have had merit before any advocate has

ever reviewed the record in his case in search of potentially meritorious grounds for

appeal.” Id. at 486. Instead, deficient performance in this context causes prejudice

because it causes the “denial of the entire judicial proceeding itself, which a defendant

wanted at the time and to which he had a right.” Id. at 483. Thus, the defendant need

only “demonstrate that, but for counsel’s deficient conduct, he would have appealed,”

id. at 486.

In light of the specific propositions of law outlining the obligations of a criminal

defense attorney at the appeal stage, and assuming, as Campbell claims in his brief, that

he did direct his attorney to file a notice of appeal,3

 we conclude that Flores-Ortega

largely governs this case. Our own precedent conforms with this result. Two years
No. 11-3233 Campbell v. United States Page 6

before Flores-Ortega, we made clear “that the failure to perfect a direct appeal, in

derogation of a defendant’s actual request, is a per se violation of the Sixth

Amendment.” Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998). Consistent

with Flores-Ortega, we also indicated that such a violation occurs “without regard to the

probability of success on appeal”; because such a failure on the attorney’s part deprives

the defendant of any counsel whatsoever, for purposes of the Strickland analysis,

“[p]rejudice must be presumed.” Ludwig, 162 F.3d at 459.

The government maintains that the existence of an appeal waiver differentiates

the attorney conduct in this case from that presented in Flores-Ortega. Admittedly,

neither Flores-Ortega nor Ludwig addresses a plea agreement that waives all or most of

the defendant’s rights on appeal. Nevertheless, even though a defendant clearly is

entitled to waive the right to an appeal by executing a plea agreement, even the broadest

waiver does not absolutely foreclose some degree of appellate review. To the contrary,

our cases have repeatedly recognized that a waiver of appeal rights can be challenged

on various—albeit narrow—grounds, including “that it was not knowing and voluntary,

was not taken in compliance with [Federal Rule of Criminal Procedure] 11, or was the

product of ineffective assistance of counsel.” United States v. Toth, 668 F.3d 374, 377

(6th Cir. 2012) (internal quotation marks omitted); see also United States v. Caruthers,

458 F.3d 459, 471 & n.5 (6th Cir.) (noting that “an appellate waiver may not bar an

appeal asserting that the sentence exceeds the statutory maximum,” or a challenge

claiming that the sentence was “based on constitutionally impermissible criteria like

race”), cert. denied, 549 U.S. 1088 (2006). Thus, “[i]t is well settled in the federal

courts that a defendant who waives his right to appeal does not subject himself to being

sentenced entirely at the whim of the district court.” Caruthers, 458 F.3d at 471

(internal quotation marks omitted).

Consequently, although appeal rights are often stringently narrowed pursuant to

a defendant’s plea agreement, there nevertheless are some instances in which defendants

seeking an appeal are still entitled to their day in court. Thus, even where an appeal

appears frivolous, an attorney’s obligations to his or her client do not end at the moment
No. 11-3233 Campbell v. United States Page 7

the guilty plea is entered. Instead, the Supreme Court’s decision in Anders v. California,

386 U.S. 738 (1967), establishes a process through which the defendant can—with the

help of counsel—obtain the requested review, thereby ensuring that his constitutional

rights are intact; the court can efficiently dispose of claims that fall within the scope of

the waiver; and the government may, but is not required to, respond to the potential

issues on appeal. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007)

(addressing the duties attorneys owe to their clients with respect to the appellate phase

of a case involving an appeal waiver); Campusano v. United States, 442 F.3d 770, 774

(2d Cir. 2006) (Sotomayor, J.) (same). Thus, there is easily room for preserving both the

efficiency interests that plea agreements promote and the interest in ensuring that

defendants are not unfairly deprived of their chance at an appeal.

Our unpublished decision in Wright v. United States, 320 F. App’x 421 (6th Cir.

2009) (unpublished opinion), is not to the contrary. In Wright, this court extended the

principles set out in Ludwig and Flores-Ortega to a case that, like this one, involved a

plea agreement that contained a broad waiver of the right to appeal the defendant’s

conviction and sentence. Id. at 422. Despite the waiver, however, we determined that,

if counsel had ignored the defendant’s express instruction to file an appeal, such action

“amounts to ‘a per se violation of the Sixth Amendment,’” and thus, “regardless of the

merits of [the defendant’s] substantive claims,” he would be entitled to relief under

§ 2255 if the district court on remand determined that there was “an actual request for

an appeal.” Id. at 426 (quoting Ludwig, 162 F.3d at 459).

The same is true here. Moreover, this conclusion is in accord with the majority

of the circuits to have addressed the same question, all of which relied principally on

Flores-Ortega to find the answer. See Watson v. United States, 493 F.3d 960, 964

(8th Cir. 2007); United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007); Poindexter,

492 F.3d at 273; Campusano, 442 F.3d at 777; Gomez-Diaz v. United States, 433 F.3d

788, 793 (11th Cir. 2005); United States v. Sandoval-Lopez, 409 F.3d 1193, 1197

(9th Cir. 2005); United States v. Garrett, 402 F.3d 1262, 1267 (10th Cir. 2005). We find

the reasoning in these cases persuasive and now take this opportunity to join them.
No. 11-3233 Campbell v. United States Page 8

We are fully aware that two circuits have parted ways with the majority on this

issue. Predictably, rather than advocating the majority position, the government urges

us to follow the minority view. See Nunez v. United States, 546 F.3d 450, 456

(7th Cir. 2008) (holding that once a defendant has validly waived his appellate rights,

absent a non-frivolous issue that could be raised on appeal, “counsel should protect the

client’s interest in retaining the benefit of the plea bargain,” even if it means ignoring a

client’s express instruction to appeal); United States v. Mabry, 536 F.3d 231, 241, 242

(3d Cir. 2008) (concluding that where an attorney fails to file a notice of appeal as

directed after the defendant waived his appellate rights in a plea agreement, waiver is the

“threshold issue,” holding that a defendant cannot bring an ineffective-assistance claim

under Flores-Ortega “unless the waiver fails to pass muster under an entirely different

test: one that examines its knowing and voluntary nature and asks whether its

enforcement would work a miscarriage of justice”), cert. denied, 129 S. Ct. 2789 (2009).

For the reasons discussed above, we decline to do so. Instead, we believe that the

outcome reached by the majority of the circuits and by our unpublished opinion in

Wright is the more faithful application of both Supreme Court and Sixth Circuit

precedent. Moreover, although Nunez in particular is largely grounded on a desire to

protect the defendant from losing the benefit of a plea bargain, we do not agree that even

that motive justifies the denial of reasonably effective counsel on appeal if the defendant

chooses that course. Analogously, it is a defendant’s prerogative to take the stand, enter

a guilty plea, or waive a jury trial, even if counsel advises against those actions.

See Model Rules of Prof’l Conduct R. 1.2(a) (1983). The same principle applies to the

defendant’s decision to pursue an appeal, even if that right has been severely limited and

the outlook on the merits is bleak. As the Second Circuit noted:

Admittedly, applying the Flores-Ortega presumption to

post-waiver situations will bestow on most defendants nothing more than

an opportunity to lose. There will not be many cases in which a

defendant whose attorney fails to file a notice of appeal after a plea

agreement and a waiver of appeal, and whose hypothetical appeal seems

meritless during ineffective-assistance habeas review, eventually

prevails. But rare as they might be, such cases are not inconceivable, and

we do not cut corners when Sixth Amendment rights are at stake.
No. 11-3233 Campbell v. United States Page 9

4

We granted Campbell a certificate of appealability only with respect to the issues related to

“whether counsel must file an appeal when requested, even where the defendant has waived all or some

of his appellate rights.” Campbell, No. 11-3233, order at 3. We therefore do not address the remaining

issues raised in Campbell’s brief, all of which fall outside the scope of the certificate of appealability.

Campusano, 442 F.3d at 777. Nor, in light of the Anders procedure described above, do

we find the efficiencies that result from first evaluating waiver as advocated in Mabry

to be persuasive. We therefore hold that even when a defendant waives all or most of

his right to appeal, an attorney who fails to file an appeal that a criminal defendant

explicitly requests has, as a matter of law, provided ineffective assistance of counsel that

entitles the defendant to relief in the form of a delayed appeal.

The final issue to be addressed is the appropriate course on remand. Although

nothing in the record contradicts Campbell’s assertion that he affirmatively expressed

to counsel his desire for an appeal, the government has not conceded the point. Because

the resolution of this factual issue is pivotal to Campbell’s claim for relief, the district

court must conduct an evidentiary hearing to determine if Campbell in fact expressed the

desire for an appeal as he now asserts. See Arredondo, 178 F.3d at 782 (requiring a plea

hearing unless “the record conclusively shows that the petitioner is entitled to no relief”

(internal quotation marks omitted)); see also Watson, 493 F.3d at 964; Tapp, 491 F.3d

at 266; Poindexter, 492 F.3d at 273; Campusano, 442 F.3d at 777; Gomez-Diaz,

433 F.3d at 792; Sandoval-Lopez, 409 F.3d at 1198; Garrett, 402 F.3d at 1267;

Wright, 320 F. App’x at 426.4

III. CONCLUSION

We recognize that, in light of the appeal waiver, the scope of the issues still

appealable in this case is quite limited. Campbell’s prospect of success on the merits is

even more limited. Nevertheless, prevailing precedent from the Supreme Court, the

Sixth Circuit, and the majority of our sister circuits mandates that even under these

circumstances, a defendant is entitled to counsel who will follow through on express

instructions to proceed with an appeal, no matter what the ultimate odds of success.

Accordingly, we VACATE the district court’s judgment and REMAND the case for an

evidentiary hearing to determine whether Campbell directed his attorney to file a notice
No. 11-3233 Campbell v. United States Page 10

of appeal on his behalf. If the district court finds that Campbell did so, his attorney’s

failure to file an appeal constituted ineffective assistance of counsel, and Campbell is

entitled to file a delayed appeal. If, on the other hand, the district court determines that

Campbell provided no such instruction, Campbell is not entitled to any further relief.