Habeas Corpus — ineffective assistance — appellate waivers

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United States Court of Appeals For the Seventh Circuit

Criminal

Habeas Corpus — ineffective assistance — appellate waivers

Where a plea agreement reserved the right to appeal one issue, and the defendant claims he asked his attorney to file a notice of appeal, an evidentiary hearing is necessary.

“Dowell submitted a sworn statement saying that he requested that his attorney appeal the career offender determination and that counsel failed to do so, and this statement clearly alleged a constitutional violation. He had personal knowledge of that allegation, and there is nothing ‘palpably incredible’ about it. See Ryan v. United States, 657 F.3d 604, 606 (7th Cir. 2011). The request was consistent with Dowell’s insistence on the carve-out for such an appeal in his plea agreement. It also makes sense that Dowell would have wanted to appeal the career offender finding in light of the much lower guidelines range that would have resulted. Dowell’s allegations are therefore sufficient to warrant further proceedings. See id. at 607.”

Vacated and Remanded.

10-2912 Dowell v. U.S.

Appeal from the United States District Court for the Southern District of Indiana, Young, J., Williams, J.