United States v. Sellner, No. 13-3794 (8th Cir. 2014)
Annotate this CaseSellner pleaded guilty to conspiracy to distribute and possess with intent to distribute methamphetamine, 21 U.S.C. 846. Judgment was entered on March 8, 2013. Her attorney did not file notice of appeal. In July 2013, Sellner filed a pro se motion to vacate her sentence under 28 U.S.C. 2255, alleging ineffective assistance of counsel, including counsel’s failure to file a notice of appeal as requested. Sellner’s attorney submitted an affidavit, stating that when Sellner asked him about filing an appeal, he told her that he would file an appeal if she insisted, but that Sellner decided to forgo an appeal after counsel explained to Sellner that she had waived her right to appeal. In November 2013, Sellner filed another pro se 2255 motion, alleging a violation under Alleyne v. United States. The district court dismissed the July motion on the merits without an evidentiary hearing and the November motion as barred by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) as “second or successive.” The Eighth Circuit reversed and remanded after the government conceded that the case should be remanded for an evidentiary hearing on the claim of failure to file a notice of appeal.
Court Description: Prisoner case - habeas. In the absence of an evidentiary hearing, petitioner's counsel's statement that petitioner agreed not to file an appeal from her conviction cannot be accepted as true; as a a result, the district court abused its discretion when it dismissed petitioner's claim of ineffective assistance of counsel based on her attorney's failure to file an appeal; when a pro se petitioner files a second Section 2255 motion while her first Section 2255 is still pending before the district court, the second motion is not barred by AEDPA and should be construed as a motion to amend; remanded for further proceedings.
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