Federal court to decide whether man asked attorney to appeal

The 7th Circuit Court of Appeals has ordered a federal judge in the Southern District of Indiana to consider whether a defendant asked his attorney to appeal his designation of a career offender at sentencing, following a guilty plea.

The government argued that Fred Dowell’s plea agreement prevented his filing of a 28 U.S.C. Section 2255 motion asserting ineffective assistance of counsel because his attorney failed to file the directed appeal. Dowell’s plea agreement specifically allowed for him to appeal if the judge found him to be a career offender and also waived his right to appeal his conviction or sentence on any other ground.

Chief Judge Philip Simon agreed with the government that the waiver provisions in the plea agreement precluded relief.

Dowell claimed he asked his attorney to appeal on the grounds of the career offender enhancement, but the attorney did not file the appeal. He said he did not learn of this until several months later and asked that he be allowed to assert a defense.

“The plea agreement specifically reserves the right to appeal the career offender determination,” Judge Ann Claire Williams wrote in Fred E. Dowell v. United States of America, 10-2912. “The specific reservation of that right necessarily includes a meaningful opportunity to exercise it,” including the effective assistance of counsel in filing the appeal.

“When counsel does not provide effective assistance by failing to file a notice of appeal of an issue specifically reserved for appeal in the plea, a petitioner must be able to use a collateral attack to save the appeal from being lost due to counsel’s failure to do what he was requested,” she continued.

There are questions as to whether Dowell asked his attorney to appeal, so the District Court should resolve this on remand, the 7th Circuit held.