The opinion of the court was delivered by: Christopher C. Conner United States District Judge
Presently before the court is defendant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 Defendant asserts that he received ineffective assistance of counsel in violation of his Sixth Amendment rights under the United States Constitution. (Doc. 146 at 4.) Specifically, defendant claims that he instructed his counsel, Attorney Edward Rymsza ("Attorney Rymsza"), to file a direct appeal of his sentence, but Attorney Rymsza disregarded this request. (Id.) Because the record contradicts defendant's claim, the court will deny defendant's motion.
On August 24, 2005, a grand jury returned an indictment charging defendant with distribution of heroin and possession of heroin with intent to distribute in violation of Section 841(a)(1) of Title 21 of the United States Code. (Doc. 1 at 1.) Defendant negotiated a plea agreement with the government (see Doc. 83) and, on November 22, 2005, pled guilty to the crime charged in the indictment (Doc. 88). On April 10, 2006, the court sentenced defendant to 110 months' imprisonment to be followed by three years of supervised release. (Doc. 125.) Attorney Rymsza spoke with defendant about his appellate rights at the conclusion of the sentencing hearing (Jan. 29, 2008 Hr'g Tr. at 10, 24-25, 28, 31, 43), both in the courtroom (id. at 31, 43) and in the holding cell where defendant was being housed pending his return to Dauphin County Prison (id. at 31-32, 43). It is undisputed that, during these conversations, Attorney Rymsza instructed defendant that there were no meritorious grounds upon which to base an appeal. (Id. at 10, 25, 32, 40.) The parties dispute whether defendant nonetheless instructed Attorney Rymsza to file an appeal but agree that no such appeal was filed.
On March 7, 2007, defendant filed the instant motion to vacate or amend his sentence pursuant to 28 U.S.C. § 2255. (Doc. 146.) After considering the parties' arguments (see Docs. 146, 151, 153), the court held an evidentiary hearing to determine a dispositive factual question raised by the parties' briefs, namely, whether defendant asked Attorney Rymsza to file a notice of appeal (see Docs. 165, 172). See also Solis v. United States, 252 F.3d 289, 295 (3d Cir. 2001) (concluding court should hold an evidentiary hearing to determine whether the defendant requested that counsel file a notice of appeal).
At the hearing, defendant testified that he told Attorney Rymsza that he wanted to file an appeal immediately after his sentencing hearing. (Tr. at 31, 32.) Furthermore, defendant's wife, Charene Soto ("Charene"), testified that she called Attorney Rymsza two days after the sentencing hearing and told him that her husband wanted to appeal his sentence.*fn2 (Id. at 25.)
The testimony of Attorney Rymsza contradicts the aforementioned evidence proffered by defendant. First, Attorney Rymsza testified that, to the best of his recollection, defendant did not request an appeal. In support of his testimony, Attorney Rymsza produced a letter which he sent to defendant after the sentencing hearing. In the letter, Attorney Rymsza summarized his post-hearing conversation with defendant. The relevant portion of the letter stated:
As we discussed, even though we may not like the ultimate sentence, I do not believe there are viable grounds for an appeal. . . . You did not indicate a desire to appeal. Accordingly, I will not be filing an appeal in this case. Should you differ with my assessment or change your mind, please contact me immediately so we may promptly discuss this matter.
(Jan. 29, 2008 Hr'g, Def. Ex. 1.) Attorney Rymsza testified that he sent the letter to defendant immediately after the sentencing hearing as is his standard practice. (Tr. at 10.) Second, Attorney Rymsza testified that he spoke with defendant and defendant's wife about the lack of meritorious grounds for appeal. Attorney Rymsza further testified that, although he did not recall the specific substance of all his communications with defendant and defendant's wife, he most assuredly would have recalled a request by defendant that he file an appeal. (Id. at 11.) Finally, Attorney Rymsza acknowledged his duty to obey the wishes of his client and stated that he would have filed an appeal if defendant had asked him to do so, regardless of his personal belief that there were no reasonable grounds for an appeal. (Id. at 15.)
Defendant alleges that Attorney Rymsza provided ineffective assistance by failing to file a notice of appeal at defendant's request and by failing to consult with him regarding his appellate rights. (Doc. 146.) In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court articulated the test for ineffective assistance of counsel claims. To prevail on an ineffective assistance claim, a defendant must establish both: (1) that counsel's performance failed to meet reasonable standards of professional conduct, and (2) that the defendant was prejudiced by counsel's deficient performance. Id. at 687-88, 692. Where a defendant asserts that his or her counsel was ineffective for failing to file a notice of appeal, the court's analysis includes an additional layer of inquiry regarding the clarity of the defendant's request to appeal. It is well established that counsel is presumed ineffective if counsel disregards a defendant's specific instructions to file a notice of appeal. See Solis, 252 F.3d at 293-94. If, however, a defendant does not expressly instruct counsel to file an appeal, counsel nonetheless may have a duty to consult with the defendant on whether he or she desires to appeal. Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000) (concluding that the right to appeal and the conclusive prejudice that results from the loss of opportunity to appeal are sufficiently significant to impose a duty to consult where it is unclear whether a defendant wants to appeal).
In the instant case, it is undisputed that Attorney Rymsza did not file a notice of appeal. (See Docs. 146 at 4, 151 at 6.) Therefore, to determine whether this loss of opportunity to appeal rises to the level of constitutionally ineffective assistance, the court must decide whether defendant instructed Attorney Rymsza to file an appeal and, if ...