1The Honorable Lyle E. Strom, Senior United States District Judge for the

District of Nebraska, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-1586

___________

Darnell Crutcher, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri

*

United States of America, * [UNPUBLISHED]

*

Appellant. *

___________

Submitted: February 14, 2001

Filed: February 26, 2001

___________

Before LOKEN and BYE, Circuit Judges, and STROM,1 District Judge.

___________

PER CURIAM.

The district court granted Darnell Crutcher’s 28 U.S.C. § 2255 motion, and the

government brought this appeal. We reverse and remand for an evidentiary hearing to

determine whether Crutcher requested his lawyer to file a notice of appeal.

In February 1998, Darnell Crutcher pleaded guilty to one count of conspiring to

defraud the United States, and two counts of transporting stolen vehicles in interstate
-2-

commerce. The district court sentenced Crutcher to concurrent terms of 56 months in

prison for each of the three counts.

Though Crutcher didn’t appeal his conviction or sentence, he filed a 28 U.S.C.

§ 2255 motion challenging his sentence in January 1999. Crutcher utilized a check-abox form provided by the Clerk of Court in the Eastern District of Missouri. He

specified only one claim in the motion: that the district court improperly imposed a 2-

level sentence increase for obstruction of justice. A different section of Crutcher’s

preprinted § 2255 form required him to explain whether he had directly appealed his

conviction. Crutcher wrote,

I asked my lawyer to appeal. My lawyer at trial had said not to do it,

because he was getting me the best “deal” he could get and not to worry.

He whispered to me and hushed me. I thought he was going to appeal.

The government opposed Crutcher’s contention that an obstruction of justice

enhancement was improper, noting that Crutcher stipulated to the enhancement in his

plea agreement. The government didn’t respond to Crutcher’s allegation that his

lawyer had failed to heed his request for an appeal.

The district court summarily rejected Crutcher’s argument against imposing a 2-

level increase for obstruction of justice. But the court construed Crutcher’s remarks

about an appeal as a claim of ineffective assistance of counsel, and the court

determined that Crutcher’s trial lawyer was ineffective for failing to appeal per

Crutcher’s request. The court granted Crutcher’s § 2255 motion and issued a new

judgment so that Crutcher could appeal his conviction. The government now appeals.

Our prior cases explain that “counsel’s failure to file a notice of appeal when so

instructed by the client constitutes ineffective assistance of counsel for purposes of

section 2255.” Estes v. United States, 883 F.2d 645, 648 (8th Cir. 1989) (citations
-3-

omitted). This doesn’t mean that counsel must always file an appeal. Counsel may

properly decline to file an appeal if the client doesn’t request one after consultation.

Cf. Roe v. Flores-Ortega, 120 S. Ct. 1029, 1035 (2000) (“[A] defendant who explicitly

tells his attorney not to file an appeal plainly cannot later complain . . . that his counsel

performed deficiently.”) (emphasis in original). Whether a defendant asked his lawyer

to file a notice of appeal presents a question of fact, and we have previously held that

if the motion, files, and records of the case were inconclusive regarding

whether [defendant] instructed his counsel to file an appeal, we would be

compelled to “remand this claim to the District Court for a hearing on the

issue of whether [defendant] requested his counsel to file an appeal.”

Holloway v. United States, 960 F.2d 1348, 1357 (8th Cir. 1992) (quoting Estes, 883

F.2d at 649).

Crutcher’s filings offer no sworn factual support for his bare assertion that he

requested an appeal. The sole basis for assuming that Crutcher wanted an appeal is his

conclusory statement on the preprinted § 2255 motion form. Although Crutcher filed

an affidavit to accompany his § 2255 motion, that affidavit omits mention of the

circumstances surrounding his desire for an appeal. The critical question, then, is

whether Crutcher specifically asked his lawyer to file a notice of appeal. If Crutcher

did ask for an appeal, his lawyer violated his Sixth Amendment rights by failing to

complete the “ministerial task” of filing a notice of appeal. See Flores-Ortega, 120 S.

Ct. at 1035.

We hold that the district court erred in granting Crutcher relief in the absence of

evidence that he requested his lawyer to file a notice of appeal. Assuming that

Crutcher’s conclusory allegations sufficed to raise an ineffective assistance of counsel
2The government posits that Crutcher’s statements in his form § 2255 motion are

insufficient to raise a claim. We disagree. Reviewing Crutcher’s pro se motion

liberally, it is safe to presume that his statements at least flagged an ineffective

assistance of counsel claim. See Jones v. Jerrison, 20 F.3d 849, 853 (8th Cir. 1994).

-4-

claim,2 the district court should have held an evidentiary hearing to get the facts

straight. We therefore reverse the judgment of the district court and remand to permit

the court to hold an evidentiary hearing.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.