United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD, UNITED STATES DISTRICT JUDGE
matter is before the Court upon initial review of the pro se
motion to vacate under 28 U.S.C. § 2255 (filing 45)
filed by the defendant, Dean Baldwin, alleging ineffective
assistance of counsel. The motion was timely filed less than
1 year after the defendant's conviction became final. See
§ 2255(f). The Court's initial review is governed by
Rule 4(b) of the Rules Governing Section 2255 Proceedings for
the United States District Courts, which provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
§ 2255 movant is entitled to an evidentiary hearing
unless the motion and the files and records of the case
conclusively show that the movant is entitled to no relief.
§ 2255(b); Sinisterra v. United States, 600
F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to
vacate under § 2255 may be summarily dismissed without a
hearing if (1) the movant's allegations, accepted as
true, would not entitle the movant to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact. Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995); see
also Sinisterra, 600 F.3d at 906.
defendant's sole claim is that his trial counsel was
ineffective in failing to file a notice of appeal.
Specifically, he alleges that counsel did not file a notice
of appeal "in contradiction of the defendant's
wishes and requests." Filing 45 at 4.
establish a claim of ineffective assistance of counsel, the
defendant must show that his attorney's performance was
deficient and that this prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Deficient performance can be shown by demonstrating that
counsel's performance fell below an objective standard of
reasonableness. Id. at 688. However, the Court's
scrutiny of counsel's performance is highly deferential,
because the Court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance. Id. at 689.
attorney's failure to file a notice of appeal upon the
client's request constitutes ineffective assistance of
counsel, and no specific showing of prejudice is required.
Sellner, 773 F.3d at 930. Even if the client waived
his right to appeal as part of a plea agreement, prejudice is
presumed if the client asked his attorney to file a notice of
appeal and the attorney did not do so. Id.
such a claim to succeed, the defendant must show that he
manifestly instructed his counsel to file an appeal.
Walking Eagle v. United States, 742 F.3d 1079, 1082
(8th Cir. 2014). Here, the defendant's allegation of his
"wishes and requests" to appeal can be charitably
characterized as threadbare. But it does suggest that he
asked his counsel to file a notice of appeal. Compare
Watson v. United States, 493 F.3d 960, 962 (8th Cir.
assertion by the petitioner that he made a request to appeal
is not by itself sufficient to support a grant of relief, if
evidence that the fact-finder finds to be more credible
indicates the contrary proposition. Walking Eagle,
742 F.3d at 1082. But that requires evidence, so the Court
cannot resolve this claim without an evidentiary hearing.
Sellner, 773 F.3d at 930.
defendant has also filed a motion for leave to proceed in
forma pauperis (filing 46). That motion will be denied as
moot, because there is no fee for filing a § 2255
motion. See Rules Governing Section 2255 Proceedings for the
United States District Courts, Rule 3 advisory
1. The Court will hold an evidentiary hearing on the claim
that the defendant received ineffective assistance of counsel
when his counsel did not file an appeal.
2. The Clerk of the Court shall mail a copy of this order to
the defendant at his address of record.
3. The Court will authorize the appointment of counsel for
the defendant by a separate order. The Clerk shall provide a
copy of this order to defendant's ...