What happens when a criminal defense lawyer does not file an appeal for his client?

This is one of the rare habeas corpus petitions that actually prevails on appeal. The plaintiff was a criminal defendant who was found guilty of 22 counts, including mail fraud and murder-for-hire in the Northern District of New York. He was represented by a public defender and wants to appeal. But that appeal never happened. Hence the habeas petition. 

The case is Thomas v. United States, issued on February 21. Following Thomas's conviction and sentence (for 24 years of imprisonment), he asked his lawyer to file a notice of appeal. Since no appeal was filed, Thomas filed a habeas action alleging ineffective assistance of counsel. In that petition, Thomas submitted his sworn statement that he instructed his lawyer to file an appeal. But the district court denied that petition, holding that 

[I]t is unclear when and how he made such request, whether there were any discussions about the request, whether he followed up with counsel, whether he was aware of the deadlines to appeal, or if [he] agreed to forgo the appeal.

In other words, the district court held, Thomas's petition raised only "vague, conclusory, or palpably incredible" allegations. The Second Circuit (Jacobs, Sack and Nardini) reverses.

Thomas wins the appeal because the district court abused its discretion in declining to hold a hearing on Thomas's claim that he told his lawyer to file an appeal. As the Court of Appeals notes, "The right
to appeal has long been recognized as sacrosanct, particularly in cases involving the loss of a chance at an entire appellate proceeding,” and "[a] lawyer who 'disregards specific instructions' to file an appeal provides ineffective assistance. This is true even if the lawyer believes the appeal to be frivolous," in which case the lawyer has to file a brief explaining why a full appeal has no chance for success.

Since Thomas "swears" he told his lawyer to file an appeal, and that his lawyer failed to do so, case law holds that a hearing on this issue is required under these circumstances. "Thomas’s failure to specify 'when and how he made such request,' is therefore no basis for denying the petition without fact-finding. That uncertainty is the very reason for a fact inquiry: so that the district court may determine 'whether the client requested the appeal,' notwithstanding the allegation."

What it means for Thomas is that the case returns to the Northern District of New York for a hearing on whether Thomas really did tell his lawyer to file an appeal. If the trial court rules in favor of Thomas on this issue, the question will then become whether this appeal had any chance for success; that issue will complete the ineffective assistance inquiry. Ultimately, to get what he really wants, Thomas needs to prove that the appeal would have been successful and that his conviction and/or sentence would have been modified or vacated entirely.