Corral, Jose H. v. United States

In the

United States Court of Appeals

For the Seventh Circuit

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No. 06-1701

JOSE HERRERA CORRAL,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 1432—Joan B. Gottschall, Judge.

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ARGUED JANUARY 23, 2007—DECIDED AUGUST 13, 2007

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Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. In 2002 Jose Herrera Corral

and his father-in-law, Fidel Robeles-Ortega, pled guilty to

conspiring to possess cocaine with intent to distribute.

Although each defendant’s plea agreement specifically

reserved the right to appeal the district court’s ruling on

their joint motion to suppress, only Robeles-Ortega’s

attorney filed a notice of appeal. Robeles-Ortega’s appeal

succeeded in this court, and he was released from prison.

While Robeles-Ortega’s appeal was still pending, however,

Herrera Corral filed a federal habeas petition, alleging

that his counsel was ineffective because he operated under

a conflict of interest and was not available when Herrera

Corral tried to inform him that he wished to file an appeal.

2 No. 06-1701

After a hearing, the district court denied Herrera Corral’s

petition, concluding that his attorney’s performance was

not constitutionally deficient. Because Herrera Corral’s

counsel remained unreasonably unavailable during the

ten-day window to file an appeal, we reverse.

I. BACKGROUND

In 2001 agents from the Drug Enforcement Administra-

tion raided an apartment without a warrant, seized a bag

full of cocaine, and arrested Herrera Corral and his father-

in-law—the apparent custodians of the seized drugs. Both

Herrera Corral and Robeles-Ortega moved to suppress

the cocaine, but after the district court denied the motion,

they agreed to plead guilty to conspiring to possess and

possessing with intent to distribute cocaine, 18 U.S.C. § 2;

21 U.S.C. §§ 841(a)(1), 846, and both signed conditional

plea agreements that reserved their right to appeal the

adverse suppression ruling.

The district court sentenced Herrera Corral to the

mandatory minimum term of imprisonment—ten years—

and found him ineligible to receive a sentence below the

mandatory minimum because he was not completely

cooperative with the government. See U.S.S.G. § 5C1.2

(permitting judges to sentence certain first-time, non-

violent drug offenders below the mandatory minimum

if they fully cooperate with the government). After the

court sentenced Herrera Corral, his attorney did not file a

notice of appeal within the required ten days after judg-

ment, Fed. R. App. P. 4(b)(1)(A)(i), despite having pre-

served in the plea agreement Herrera Corral’s right to

appeal the adverse suppression ruling. In contrast,

Robeles-Ortega appealed the district court’s suppression

ruling, and we held that the drugs were the result of an

illegal search and should have been suppressed. United

States v. Robeles-Ortega, 348 F.3d 679, 684-85 (7th Cir.

No. 06-1701 3

2003). As a result, Robeles-Ortega was released from

prison.

While his father-in-law’s appeal was pending, Herrera

Corral filed a petition in the district court under 28 U.S.C.

§ 2255, proposing two theories for why his counsel was

ineffective. He first claimed that counsel’s loyalty to

Robeles-Ortega caused him to refrain from advising

Herrera Corral to provide information to the government

implicating his father-in-law. Second, he contended that

counsel did not adequately consult with him about

filing an appeal and remained unavailable when Herrera

Corral repeatedly attempted to tell counsel to file a

notice of appeal.

The district court held an evidentiary hearing on the

motion. Herrera Corral first testified about his claim that

counsel had a conflict of interest, saying that counsel told

him that Robeles-Ortega would pay his $50,000 legal

fee. Herrera Corral said that he thought that because

Robeles-Ortega paid the attorney’s fee, counsel never

advised him that he needed to disclose more information

to the government to qualify for a sentence below the

mandatory minimum. On the other hand, Herrera Corral

testified that he told the government everything he knew.

Herrera Corral next addressed his claim that counsel

improperly failed to file a notice of appeal. He asserted

that prior to sentencing, counsel advised him that the

cocaine should have been suppressed, that counsel had

friends who could handle an appeal for $10,000, and that

he thought that the appeal “had a chance.” Herrera Corral

said that during the ten days after judgment he tried to

tell counsel to file a notice of appeal but could not tele-

phone him directly because he knew from previous experi-

4 No. 06-1701

ence that his attorney blocked calls from the prison.1

Herrera Corral therefore instructed his wife to call.

Although she left several messages, counsel did not return

any of the calls within the relevant ten days. Herrera

Corral testified that his wife also inquired at the office of

the clerk of this court about obtaining a public defender

for her husband, but was unable to have one appointed.

Herrera Corral’s wife and sister also testified at the

hearing that counsel spoke to them immediately after

sentencing about the possibility of having the appeal

handled by another attorney for $10,000 or by a federal

public defender. His wife corroborated Herrera Corral’s

testimony that she tried to call counsel several times

about the appeal and that he did not return her calls until

after the time to file an appeal had long passed.

Counsel was the next to testify, describing his interac-

tions with Herrera Corral on the day of sentencing.

Counsel testified that he met with Herrera Corral prior to

the sentencing hearing to discuss the suppression issue.

During their conversation, Herrera Corral said that he

did not want to appeal but that, despite counsel’s re-

quest, he also did not want counsel to withdraw. The

attorney then recounted a brief meeting he had with

Herrera Corral in a holding cell immediately after sen-

tencing, during which he advised Herrera Corral that a

potentially meritorious issue remained for appeal, but

1

Before sentencing Herrera Corral attempted to telephone his

attorney from prison, but the call did not go through because

of a “call result 31,” meaning that counsel had placed a block on

all calls from the prison to his office. According to counsel, once

a person blocks incoming calls from the prison, the intended

receiver must affirmatively unblock the calls to receive them.

Prison telephone records verify that Herrera Corral’s calls to

his attorney were blocked.

No. 06-1701 5

with regard to representing Herrera Corral on the appeal,

“I told him I wouldn’t do it.” At that point Herrera Corral

“just sat on the bench back in the lockup,” and said,

“ ‘I don’t care. I don’t care.’ ”

Counsel concluded that Herrera Corral did not wish to

appeal, but the response “surprised” him because “what

he was saying was making no sense to me because we

had spent all this time and all this effort and we be-

lieved we had a meritorious issue.” Counsel testified that

he inquired no further and that the whole conversation

took approximately one to two minutes. Counsel said he

then spoke with Herrera Corral’s wife and told her that he

would not file the appeal because he was “done with the

case” and was “basically discharged.” He said that he

did not recall hearing from Herrera Corral or his family

during the next ten days. As for the blocked phone calls

that Herrera Corral described, counsel explained that he

may have inadvertently blocked calls from the prison

because the message from the prison asking for ap-

proval to accept calls was in Spanish.

The final witness was one of the attorney’s associates,

who testified that he and counsel met with Herrera Corral

about filing an appeal (he believed the meeting took

place before sentencing) and that Herrera Corral indicated

that he did not want to appeal. The associate, who served

as an interpreter during the meeting, summarized the

consultation between counsel and Herrera Corral:

He—he basically—his body language was—I mean,

I remember this. He just sat there, he seemed so upset

by this. He says no, that’s okay, in response to filing

the appeal. We reminded him look, you still have a

chance to do this, even after you’re sentenced, even

when you’re doing your sentence. You can appeal this.

You should appeal this. This was reserved for you, this

right. This was a very good thing that was done for

6 No. 06-1701

you. Normally you don’t get this kind of thing in a

plea agreement. Normally those issues are waived, but

this was reserved for you, you should do so. And he

again just sort of drooped down and said no, that’s

okay.

Crediting counsel’s and his associate’s testimony, the

district court found that counsel had made reasonable

efforts to discover Herrera Corral’s wishes and that

Herrera Corral “indicated clearly” that he did not want

to appeal. Accordingly, the district court denied Herrera

Corral’s petition, and he appeals.

II. ANALYSIS

When a district court denies a § 2255 motion, we review

the court’s findings of fact for clear error and rulings of

law de novo. Hall v. United States, 371 F.3d 969, 972-73

(7th Cir. 2004).

Herrera Corral argues that counsel’s performance was

ineffective because he failed to file a notice of appeal, see

Fed. R. App. P. 4(b)(1)(A), and was not available during

the ten days to file an appeal. Although the district court

found that Herrera Corral “indicated clearly” to counsel

that he did not wish to appeal, this ruling does not re-

solve whether counsel rendered ineffective assistance by

remaining unavailable to Herrera Corral and his wife

during the period to file the appeal.

In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Su-

preme Court stated that “a defendant who explicitly tells

his attorney not to file an appeal plainly cannot later

complain that, by following his instructions, his counsel

performed deficiently.” Id. at 477. And we have held

that “[c]ounsel will not be found ineffective per se for

failure to appeal an appealable judgment.” Oliver v. United

States, 961 F.2d 1339, 1342 (7th Cir. 1992). But neither

No. 06-1701 7

the Supreme Court nor this court has ever held that a

defendant who initially indicates that he does not wish to

appeal cannot reasonably expect counsel’s assistance if

the defendant has a change of heart before the window

to file an appeal closes.

The district court addressed this point only briefly,

saying in a footnote, “Herrera Corral provides no sup-

port for the argument (and the court cannot find any) that

an attorney has a duty to be reachable by his client after

his client has discharged him.” The district court never

found, however, that counsel was discharged. In fact,

counsel’s own testimony—which the district court

credited—indicates that he was not discharged, but rather

unilaterally quit. Counsel testified that before sentencing

he offered to withdraw, but Herrera Corral “asked me not

to do that.” After sentencing, despite Herrera Corral’s

request that he not withdraw from representation, counsel

told Herrera Corral that he “wouldn’t do” the appeal.

Counsel reiterated during cross examination that “I had

even offered to withdraw, and he said no, he didn’t want

me to withdraw after all the other issues that had devel-

oped. That’s why I went to [Herrera Corral’s wife] and

said: I can’t do this appeal.” Importantly, counsel never

said that he sought permission from this court—or any

court—before deciding to withdraw; that decision was

impermissible without leave from this court.

In United States v. Flowers, 789 F.2d 569, 570 (7th Cir.

1986) (per curiam), we ruled that only this court may

allow defense counsel to withdraw after judgment in the

district court has been entered. While the situation in

Flowers was slightly different than the facts presented

here because the defendants’ attorneys in Flowers moved

to withdraw after filing notices of appeal, the concerns

here are the same. Flowers relies on what was then Circuit

Rule 2(c) (the current Rule 51(a) uses the same text),

which stated that “[t]rial counsel in a criminal case,

8 No. 06-1701

whether retained or appointed by the district court, is

responsible for the continued representation of the client

desiring to appeal unless specifically relieved by the court

of appeals upon a motion to withdraw.” Id. at 570 n.1

(quoting Circuit Rule 2(c)). We stated that the policy

informing this rule was “our responsibility of ensuring

that trial counsel perfects a defendant’s appeal,” and we

stated that “[w]e have seen too many examples of crim-

inal defense attorneys wanting to bail out on appeal while

leaving their clients in the lurch.” Id. at 570. The rule of

course references a “client desiring to appeal,” but the

decision whether to appeal is not final until the time to

perfect an appeal has expired. See id. (noting this court’s

responsibility to ensure that counsel perfect an appeal

after sentencing). Between entry of judgment and the

close of the appeal window, counsel must not be allowed

to withdraw precisely because a client who initially de-

cides not to appeal might change his mind, and—as we

have seen in this case—the consequences of the lawyer

simply walking off can be too high. Of course, a defendant

who has a change of heart and makes no real effort to

inform counsel is not entitled to relief. Moreover, although

we conclude that an attorney should remain available to

a client during the relevant ten-day period, we are not

suggesting that the attorney must adjust his or her

schedule in anticipation of the client’s decision to ap-

peal. Rather, we simply hold that when a criminal defen-

dant has made reasonable efforts to contact his lawyer

about an appeal during the ten-day period, his lawyer

must make a reasonable effort to reach the client before

the time for filing a notice of appeal expires.

Therefore, we must now ask whether the attorney

remained reasonably available to Herrera Corral during

that ten-day period, and in doing so we look both to

Herrera Corral’s efforts and counsel’s behavior. Looking at

the facts credited by the district court, it is evident that

No. 06-1701 9

rather than remaining available, the attorney actually

avoided contact from Herrera Corral and his wife. Herrera

Corral’s wife testified that she repeatedly called counsel

for assistance during the ten-day appeal period, but

that her phone calls were not returned. This is consistent

with her testimony that she sought help from other

quarters as well: at the Federal Public Defender’s office

and at the office of the clerk of this court. Counsel claims

he does not recall receiving any of her messages. But the

district court never found that Herrera Corrals’ wife was

not credible concerning placing these calls, stating only,

“[w]hile the court found Herrera Corral’s wife and sister

to be somewhat credible, any weight accorded to them

does not tip the balance in Herrera Corral’s favor in light

of the strength of [counsel] and [his associate’s] testi-

mony.” Considering the court’s suggestion that the attor-

ney was not required to be reachable, this statement seems

to indicate that the district court thought the later phone

calls didn’t matter, not that they didn’t happen. Moreover,

telephone records from the prison establish that Herrera

Corral’s phone calls to his lawyer were in fact blocked

as Herrera Corral described. The court’s findings demon-

strate that the attorney was not merely unavailable; his

failure to return some phone calls and his blocking of

others were affirmative steps to prevent his client from

reaching him during this crucial time frame. Counsel took

affirmative actions to avoid his client and was therefore

unreasonably unavailable and his representation was

constitutionally deficient.

Additionally, counsel’s deficient performance prejudiced

Herrera Corral, who would have filed an appeal but for

his attorney’s actions. “[W]hen counsel’s constitutionally

deficient performance deprives a defendant of an appeal

that he otherwise would have taken, the defendant has

made out a successful ineffective assistance of counsel

claim entitling him to an appeal.” Flores-Ortega, 528 U.S.

10 No. 06-1701

at 484. Herrera Corral’s wife said—in testimony that the

district court did not discredit—that she tried to reach the

attorney because Herrera Corral wanted to file an appeal.

Because counsel did not return her calls, Herrera Corral

was deprived of an appeal that he would have other-

wise taken. Herrera Corral has therefore established a

successful ineffective assistance of counsel claim and he

is entitled to an appeal.

Because we have already decided that counsel’s assis-

tance was ineffective, it is not necessary to address

Herrera Corral’s second argument that counsel operated

under a conflict of interest, which deterred him from

advising Herrera Corral to provide more information about

his father-in-law. But we note that Herrera Corral has

consistently maintained that he told the government

everything he knew and that he told them the truth.

Herrera Corral therefore likely could not establish that

the presumed conflict adversely affected his representa-

tion. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); Hall

v. United States, 371 F.3d 969, 973 (7th Cir. 2004).

III. CONCLUSION

Because counsel rendered ineffective assistance, the

district court’s judgment is REVERSED and the case is

REMANDED for the entry of an order granting the petition

for a writ of habeas corpus. Under Circuit Rule 40(e), this

opinion was circulated to all the active judges of this court,

and none voted to hear the case en banc.

No. 06-1701 11

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-13-07