Fennell v. United States

Background

William Fennell moved under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a sentence, to vacate, set aside, or correct his sentence. He claimed that his lawyer provided ineffective assistance by refusing to file a notice of appeal after Fennell asked him to do so.

Fennell had pleaded guilty under a plea agreement that waived his right to appeal as long as the sentence did not exceed 240 months. During the plea proceeding, he stated that he understood the agreement and the appeal waiver. On December 6, 2019, the court sentenced him principally to 240 months, the sentence agreed to by the parties. The court advised him that a notice of appeal had to be filed within fourteen days.

Fennell filed his § 2255 petition on October 5, 2020. With Fennell’s informed consent, his lawyer submitted an affidavit. The lawyer stated that he had discussed sentencing and possible appeals with Fennell before sentencing, but Fennell indicated that he did not want to appeal. The lawyer also recalled discussing an appeal with Fennell at the courthouse on the sentencing date but did not recall Fennell requesting one. He said he did not file a notice of appeal because, after consulting with Fennell, he believed there was no legal basis for an appeal.

Court’s Analysis

The court applied the two-part test for ineffective assistance of counsel from Strickland v. Washington: the defendant must show that counsel’s performance fell below an objectively reasonable standard and that the deficient performance caused prejudice. Under Roe v. Flores-Ortega, a lawyer acts unreasonably by disregarding a specific instruction to file a notice of appeal. The court also recognized that prejudice is presumed when that error causes the loss of the appeal itself, even when the defendant signed an appeal waiver.

The court found that Fennell’s allegation was conclusory. He did not provide details about where, when, or how he supposedly instructed his lawyer to file an appeal. By contrast, the lawyer’s affidavit gave specific accounts of discussions about an appeal and stated that Fennell had not requested one.

The court found the lawyer’s account supported by other circumstances: Fennell understood the appeal waiver, received the agreed-upon 240-month sentence, waited about ten months to raise the issue, and did not identify a possible ground for appeal. After receiving the affidavit, Fennell still did not provide specific details, other than saying the request would have occurred after the court advised him of his appeal rights. The court therefore found that Fennell had not proved, by a preponderance of the evidence, that he instructed counsel to file a notice of appeal.

The opinion also states that any appeal would have failed because of the appeal waiver and because United States v. Davis did not apply to Fennell’s conviction. The court’s ruling on the ineffective-assistance claim, however, rested on its finding that Fennell did not ask his lawyer to file the notice.

Disposition

The court found no ineffective assistance of counsel and ruled that a testimonial hearing was unnecessary because the written submissions provided enough evidence to decide whether Fennell had requested an appeal. The petition was denied. The court also ruled that a certificate of appealability would not issue because Fennell had not made a substantial showing that his constitutional rights were denied. The criminal docket was updated, the § 2255 motion was terminated, and the civil case was closed.