Seventh Circuit rules attorney must be available during appeal window.

Byline: David Ziemer

No matter how adamant a client may be that he doesn't want to appeal, it is ineffective assistance of counsel if you are not available during the appeal window, in case he changes his mind. An Aug. 13 decision by the Seventh Circuit ordered that a defendant's habeas corpus petition be granted, when his attorney failed to appeal after the client decided he wanted to. In 2001, DEA agents raided an apartment in Illinois without a warrant, seized a bag full of cocaine, and arrested Jose Herrera Corral and his father-in-law, Fidel Robeles-Ortega. Both moved to suppress the cocaine in federal court, but after the district court denied the motion, they pleaded guilty to conspiring to possess and possessing with intent to distribute cocaine, reserving their right to appeal the suppression ruling. Robeles-Ortega appealed, and the Seventh Circuit reversed, holding that the drugs should have been suppressed. Herrera Corral did not appeal, but instead filed a petition under 28 U.S.C. 2255, claiming his counsel was ineffective for not appealing. At the hearing, Herrera Corral testified that he tried to tell his attorney to file an appeal, but could not, because his attorney had placed a block on calls from the prison. Prison telephone records verified this claim. Herrera Corral's wife testified that she called the attorney several times about the appeal, but he did not return her calls until after the time to file an appeal had passed. The attorney and the interpreter testified that, immediately after the sentencing, Herrera Corral said he did not want to appeal. The district court denied the petition, but the Seventh Circuit reversed, in a decision by Judge Ann Claire Williams. The court acknowledged that, In Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), the Supreme 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." In addition, in Oliver v. U.S., 961 F.2d 1339, 1342 (7th Cir. 1992), the court held that "Counsel will not be found ineffective per se for failure to appeal an appealable judgment." However, the court distinguished the two cases, noting that neither holds that a defendant...