UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Walter Norton

v. Civil No. 06-cv-282-JD

Opinion No. 2007 DNH 113

United States of America

O R D E R

This case was remanded from the Court of Appeals to consider

whether the petitioner was denied his right of direct appeal due

to ineffective assistance of counsel. An evidentiary hearing was

held at which the petitioner and his former counsel, James

Gleason, testified.

The court finds the testimony of Mr. Gleason to be credible. 

He spent a significant amount of time with the petitioner and his

mother preparing for trial and for sentencing. He thoroughly

reviewed the various sentencing options with the probation

officer and fully explored the career offender issue and whether

there was a way to extricate the petitioner from that status. He

concluded that the petitioner was a career offender. The

petitioner and his mother were kept fully informed of this issue

throughout the case. Mr. Gleason also discussed the petitioner's

right of appeal with him on several occasions and again just

prior to the sentencing hearing.

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At the sentencing hearing, Mr. Gleason argued persuasively

on the petitioner's behalf. The petitioner received a very

favorable sentence which was well below the guideline range he

was facing and the government's recommendation. The court

advised the petitioner of his right to appeal.

After sentencing, Mr. Gleason asked leave of the marshals to

speak with the petitioner. The petitioner asked him if he had

the right to appeal and Mr. Gleason assured him that he did as

they had previously discussed. Mr. Gleason went as far as to say

"you can appeal anything". In response, the petitioner asked if

he had anything to appeal and Mr. Gleason asked him what he

thought, in light of the favorable sentence he received, and

asked him directly if he wanted to appeal, to which the

petitioner replied no. Mr. Gleason added that if the petitioner

changed his mind he should let him know right away because of the

ten-day deadline. Mr. Gleason reiterated to the petitioner's

mother their conversation, told her about his right to appeal

within ten days and gave her his opinion. Neither the petitioner

nor his mother asked Mr. Gleason to file an appeal. Mr. Gleason

did tell them that if the law changed and a legitimate challenge

could be raised to the career offender category he would follow

through.

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Subsequent to the sentencing, letters were exchanged between

the petitioner and Mr. Gleason (see Exhibits A, B, and C). The

upshot of the exchange was that the petitioner wanted to appeal

if there were any issues that could be appealed, otherwise not. 

In Mr. Gleason's opinion there were none and there the matter

ended.

"To prove ineffective assistance of counsel, a defendant

must show that 'counsel's representation fell below an objective

standard of reasonableness,' and that 'the deficient performance

prejudiced his defense.'" Owens v. United States, 483 F.3d 48,

57 (1st cir. 2007) (quoting Strickland v. Washington, 466 U.S.

668, 687-88 (1984)). Deficient performance means that counsel's

representation fell below "the broad norms of professional

competence." Owens, 483 F.3d at 57. Prejudice requires proof

that "but for counsel's deficient performance, there is a

reasonable probability that the outcome would have been

different." Id. at 58.

In the context of ineffective assistance of counsel claims

based on counsel's failure to file a direct appeal, the Supreme

Court has modified the standard somewhat. "We have long held

that a lawyer who disregards specific instructions from the

defendant to file a notice of appeal acts in a manner that is

professionally unreasonable." Roe v. Flores Ortega, 528 U.S.

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470, 477 (2000). Conversely, if the defendant explicitly refuses

an appeal after appropriate consultation, counsel is not

deficient for failing to file an unwanted appeal. Id. If the

defendant does not specifically request an appeal nor reject

appeal, counsel is obligated to consult with his client about the

advantages and disadvantages of filing an appeal. Id. at 478. 

Failure to consult with the client about an appeal is not always

constitutionally unreasonable, however, because the court's

instructions may be sufficiently clear to notify the defendant of

his right to appeal or other circumstances may make consultation

unnecessary. Id. at 479. The duty to consult exists "when there

is reason to think either (1) that a rational defendant would

want to appeal (for example, because there are nonfrivolous

grounds for appeal), or (2) that this particular defendant

reasonably demonstrated to counsel that he was interested in

appealing." Id. at 480.

Failure to file a requested appeal is per se ineffective

assistance of counsel without a showing of prejudice. See, e.g.,

Strong v. Johnson, ___ F.3d ___, 2007 WL 2080588 at *7 (4th Cir.

July 23, 2007); Watson v. United States, 493 F.3d 960, 962 (8th

Cir. 2007); United States v. Tapp, 491 F.3d 263, 265 (5th Cir.

2007). Because failure to file an appeal deprives a defendant of

counsel altogether at a critical phase and precluded the appeal,

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no presumption of reliability can be accorded to a proceeding

that never occurred. Roe, 528 U.S. at 483. Therefore, prejudice

occurs if: "but for counsel's deficient performance, [the

defendant] would have appealed." Id. at 484. That means, "a

defendant must demonstrate that there is a reasonable probability

that, but for counsel's deficient failure to consult with him

about an appeal, he would have timely appealed." Id. If that is

proven, prejudice is presumed.

Mr. Gleason spoke directly with the petitioner about his

right to appeal before the sentencing and after the sentencing. 

After sentencing Mr. Gleason consulted with the petitioner about

his right to appeal and about whether there was anything to

appeal. He gave the petitioner his opinion that there was

nothing to appeal. He reiterated that opinion in the exchange of

letters between Mr. Gleason and the petitioner. The petitioner

acquiesced in that opinion.

The court rules that the petitioner was not denied his right

of direct appeal due to the ineffective assistance of counsel. 

Counsel effectively represented the petitioner in advising him on

a number of occasions of his right to appeal, in consulting with

him about that right in the context of his case, and in giving

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him his opinion that there were no issues to appeal, in which

opinion the petitioner acquiesced.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

September 13, 2007

cc: Jorel V. Booker, Esquire

Aixa Maldonado-Quinones, Esquire

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