Ineffective Assistance of Counsel for Failing to Consult With a Client After Sentencing:  Tighe, No. 22-50332

Sentencing can be one of the most stressful times in a persons life. A person goes form being a defendant to finally convicted of the offense and they get sentenced. In my experience, things happen very fast as well; the parties make their arguments, the defendant makes their allocution, the judge pronounces sentence and then the defendant is whisked away with little time to say goodbye to their family or consult with their lawyer after sentencing before the marshals take them back.

There are some specific things that lawyers are supposed to do after sentencing. Among them is counsel the defendant about their appellate rights. This is important and the failure to do so can be ineffective assistance of counsel, as described in the Tighe case.

Tighe:  Found Guilty of Crimes and not counseled by his lawyer

Tighe was charged with possession of stolen firearms and possession of firearms by a felon. He was sentenced to 150 months overall and he received a consecutive sentence in state court for engaging in organized criminal activity. Tighe and his counsel were both shocked that Tighe would get that much. Later, he indicated that his lawyer blew him off when he asked her to find out about running his federal time and his state time concurrently instead of consecutively.  Tighe also said that after sentencing, his lawyer told him that she would visit him at the jail later on that day, but she never came.

Tighe’s lawyer indicated that she did not ask Tighe after sentencing if he wanted to appeal, instead waiting to see if he reached out to Counsel. Counsel indicated that if he had contacted her and expressed his desire to appeal, then she would have advised him of the potential disadvantages or advantages of appealing.

Tighe was able to file a 2255 motion, which was denied. He appealed the denial of his 2255 and a COA was granted.

As a reminder, to have success on a 2255 for ineffective assistance of counsel, one must show deficient performance and prejudice. These will be further explained below.

The Requirement to Consult with Counsel About an Appeal

The law on the matter is governed by Roe v. Flores-Ortega, 528 U.S. 470.

The question is whether the counsel consulted with the client about an appeal. “Consult” means “advising the defendant about the advantages and disadvantages of taking an appeal and making a reasonable effort to discover the defendant’s wishes.”

If counsel consults, then they must follow the defendant’s express instructions with respect to an appeal.  If not then the question changes.

  “If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel’s failure to consult with the defendant itself constitutes deficient performance.

In Flores-Ortega, the court held that:

“counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known.”

Here, there was evidence that a rational defendant would have wanted to appeal and that Tighe also demonstrated that he was interested in appealing:

“Regardless of whether Diaz did or did not tell Tighe that he would not get a stacked sentence, she still expressed shock over it. It is reasonable to expect that Tighe would have that same reaction. Tighe had also asked Diaz, as she acknowledged, to ask the district court to run his federal sentence concurrent with his state sentence. But she did not do that. Those are all indications that Tighe would be interested in appealing.”

The Fifth Circuit also noted that there was a requirement to counsel the defendant on the advantages and disadvantages specifically after sentencing, which did not happen here. As a result of all of this the court found that there was a duty to counsel Tighe about the advantages and disadvantages of appealing and that did not happen here. The court found that deficient performance had been proven.

The court also determined that there was prejudice here.  In this context, prejudice means that “a defendant must demonstrate that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.”  The court noted that that there was no self-evident reason why he would have not filed a direct appeal. Further, the court noted that there is no requirement for the defendant to prove that his hypothetical appeal has “merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal.”

The Fifth Circuit Reversed the Ruling of the District Court and ordered the district court to grant an out of time appeal to Tighe.

Notes

I hear time and time again that Defense Attorneys tell their clients almost immediately after sentencing things like “We can’t appeal, it will tick off the judge” or “no, you don’t have anything to appeal off of” or “if you appeal, you’ll get more time.” All those things are horribly off base, as the court makes clear here.

If your lawyer said one of those things to you or did not appeal your district court judgment even when you asked them to, you may be able to file a 2255 and may be able to get the ability to file an out of time appeal. If that applies to you then email us at [email protected] over trulincs with the title “ineffective assistance” so that we can review your circumstances and let you know what we believe that we can do for you.