United States v. Herring, No. 18-4023 (10th Cir. 2019)Annotate this Case
Lawrence Herring appealed the denial by the district court of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. 2255. In 2016, Herring pled guilty to one count of possession of child pornography pursuant to a plea agreement, which included a waiver of many of Herring’s appeal rights, except for his ability to appeal claims of ineffective assistance of counsel. In exchange for Herring’s guilty plea, the government agreed to recommend at sentencing a term of incarceration at the low end of the Sentencing Guideline range, which was 78-97 months. The district court sentenced Herring to sixty months’ imprisonment. At the sentencing hearing, the district court advised Judgment was entered in Herring’s case on May 5, 2016. That same day, Herring met with his trial counsel. In his section 2255 motion, Herring alleged that he told his attorney “specifically that he wanted to appeal his case,” although he conceded he did not explicitly command his attorney to file a notice of appeal. According to the motion, in response, Herring’s attorney said that “he did not do appellate work and that he would not be able to do it. . . . [Herring’s trial counsel] flatly stated [that Herring] had waived [his] right to appeal in the plea agreement and offered no further options other than to contact another attorney.” Furthermore, Herring alleged that his attorney never told him that “there was no merit to appealing his case” nor offered any other “advice regarding appealing” besides referring Herring to other attorneys. The Tenth Circuit granted a certificate of appealability to determine whether the district court erred in denying, without a hearing, Herring's claim that his trial counsel's failure to consult with him about an appeal constituted ineffective assistance of counsel. The Tenth Circuit concluded the district court abused its discretion under 28 U.S.C. 2255(b) by failing to hold an evidentiary hearing to resolve Herring’s section 2255 motion because the record did not “conclusively show” that Herring was entitled to no relief.