Montemoino v. United States

PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 94-4774 Non-Argument Calendar ________________________ D.C. Docket No. 94-37-CIV-KEHOE 91-742-CR-KEHOE

ROBERT MONTEMOINO, Petitioner-Appellant, versus

UNITED STATES OF AMERICA, Respondent-Appellee.

_______________________ Appeal from the United States District Court for the Southern District of Florida _______________________ (October 20, 1995)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM: Robert Montemoino was convicted, based upon his guilty plea,

of conspiracy to possess with intent to distribute cocaine. He did

not appeal his conviction or sentence. Thereafter, Montemoino

filed a 28 U.S.C. § 2255 petition raising a large number of grounds

for relief. The district court denied that petition, and

Montemoino appeals.

The district court's denial of the petition was proper, except

in one respect. One of the grounds Montemoino raised in the

petition was that his attorney had rendered ineffective assistance

of counsel by failing to appeal his sentence. Montemoino alleged

in the petition that he had requested his attorney to file a notice

of appeal, but the attorney failed to do so. Nothing in the record

of the guilty plea proceeding or the record of the § 2255

proceeding contradicts Montemoino's allegation. The district court

did not hold a hearing on the petition.

This Court has long held that an attorney's failure to file an

appeal after the defendant requests him to do so entitles the

defendant to an out-of-time appeal, even without a showing that

there would have been any viable grounds for an appeal. See e.g.,

Gray v. United States, 834 F.2d 967, 967-68 (11th Cir. 1987); see also Ferguson v. United States, 699 F.2d 1071, 1072-73 (11th Cir.

1983) (and cases cited therein). However, this Court has also held

that a different rule applies to guilty plea cases, because:

[t]he considerations . . . underlying an acceptance of a guilty plea are quite different from the considerations underlying a defendant's decision to take a direct appeal from a judgment of conviction. A guilty plea, since it admits all the elements of a formal 2 criminal charge, waives all non-jurisdictional defects in the proceedings against a defendant. Absent a jurisdictional defect, a defendant usually has no right to appeal from a plea of guilty.

Ferguson, 699 F.2d at 1073 (quoting Barrientos v. United States , 668 F.2d 838, 842-43 (5th Cir. 1982) (citations omitted). Because

the few grounds upon which the guilty plea may be challenged are

not limited to direct appellate review, but instead are more

appropriately raised in § 2255 proceedings, an attorney's failure

to file a direct appeal from a guilty plea "does not constitute

ineffective assistance of counsel since it causes no harm to the

defendant." Ferguson, 699 F.2d at 1073 .

At first blush, the Ferguson rule would appear to foreclose

Montemoino's claim that his attorney's failure to file an appeal

constituted ineffective assistance of counsel. However, Ferguson

is a pre-Sentencing Guidelines case. See U.S.S.G. ch.1, pt.A

(observing that the Sentencing Guidelines took effect November 1,

1987). Absent an express waiver of the right to appeal his

sentence, a defendant who pleads guilty and is sentenced under the

Guidelines has a right to direct appeal of his sentence. See United States v. Bushert, 997 F.2d 1343 (11th Cir. 1993). Because

of that opportunity, a defendant has no right to raise Guidelines

sentencing issues in a § 2255 proceeding. See Cross v. United

States, 893 F.2d 1287, 1289 (11th Cir.), cert. denied, 498 U.S. 849

(1990) (holding that a petitioner may not litigate claims in a §

2255 proceeding that were not raised on direct appeal absent a

showing of both cause and actual prejudice). The reasoning that 3 underlies the Ferguson rule in pre-Guidelines cases does not apply

insofar as sentencing issues in Guidelines cases are concerned,

because none of the Guidelines sentencing issues available to the

defendant are waived by the plea, unless there is an express waiver

of the right to appeal the sentence that complies with the

requirements of Bushert. There was none in this case.

Accordingly, if Montemoino requested his counsel to file an

appeal, and counsel failed to do so, Montemoino is entitled to an

out-of-time appeal on any sentencing issues. Such an appeal would

extend only to sentencing issues. The Ferguson rule is still

applicable insofar as guilt stage, or guilty plea validity, issues

are concerned, because those issues can be raised in a § 2255

proceeding. They were in this case, and the district court

properly rejected them on the merits.

We remand for an evidentiary hearing on Montemoino's

allegation that he requested his counsel to file a direct appeal.

If the district court finds that Montemoino did make such a

request, it should enter an order granting an out-of-time appeal

limited to sentencing issues.

AFFIRMED IN PART and REVERSED IN PART.

4