What are some recent, common issues for claims via a Motion to Correct, Set Aside or Vacate a Sentence pursuant to 28 U.S.C. Section 2255?
My attorney never filed an appeal like he said he would
The proper framework for evaluating a claim that counsel was constitutionally ineffective for failing to file a notice of appeal is provided by Strickland v. Washington, 466 U.S. 668 (1984), which requires a defendant to show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant. Strickland, 466 U.S. at 688-694. While "judicial scrutiny of counsel's performance must be highly deferential," a lawyer who disregards a defendant's specific instructions to file a notice of appeal acts in a professionally unreasonable manner. Roe v. Flores-Ortega, 528 U.S. 470 at 477-78 (2000). Flores-Ortega concerned a similar circumstance as here, where the record was unclear with respect to the defendant's wishes to file an appeal as the defendant in that case neither instructed counsel to file an appeal, nor asked that an appeal not be taken. Id. Flores-Ortega 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 an 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."
Flores-Ortega, 528 U.S. at 480.
With respect to the prejudice prong of the ineffectiveness claim, courts have applied a strong presumption of reliability to a proceeding, requiring a petitioner to overcome that presumption by demonstrating that attorney errors had an effect on the defense. Flores-Ortega, 528 U.S. at 481. However, where a petitioner has been denied the entire proceeding, such as through failure to file a notice of appeal, courts presume prejudice because "no presumption of reliability can be accorded to judicial proceedings which never took place." Id. at 483. In Solis v. United States, 252 F.3d 289 (3d Cir. 2001), the defendant filed a ? 2255 motion claiming that he directed his attorney to file an appeal, but that his attorney failed to comply. The Third Circuit held that this allegation alone created "a question of fact whether Solis directed his attorney to file an appeal," and warranted a hearing, whereupon if it was determined that Solis so directed his counsel to appeal, "then Solis' Sixth Amendment right to counsel was violated by his counsel's failure to act." Solis, 252 F.3d at 294, citing Flores-Ortega, 528 U.S. at 477. The Third Circuit rejected the Government's position that there was no prejudice on the basis that Solis had few, if any, meritorious issues to raise on appeal finding this was a procedural right which was denied and that the remedy for the violation was a new opportunity for direct appeal. Id. at 294-95. The Solis Court's holding wa
What about the new caselaw of Johnson v. United States? Can that help me?
In Johnson, the Supreme Court invalidated the residual clause of the Armed Career Criminal Act ("ACCA") as unconstitutionally vague. Before Johnson, the ACCA defined a violent felony as follows: (B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-- i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. ? 924(e)(2)(B).
The ACCA's definition of violent felony is divided into three distinct clauses. An offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another" falls under the "element-of-force clause." Burglary, arson, extortion, and offenses involving the use of explosives fall under the "enumerated offense clause." An offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another" falls under the "residual clause." In evaluating whether an offense is a "violent felony" for ACCA purposes, courts apply a "categorical approach," meaning they "look only to the statutory definitions--i.e., elements--of a defendant's prior offenses, and not to the particular facts underlying those convictions." Descamps v. United States, 133 S. Ct. 2276, 2283 (2013) (internal quotation marks omitted). An offense is a "categorical" match only if all of the conduct covered by the statutory definition, "including the most innocent conduct," matches or is narrower than the definition of a "violent felony" supplied by the ACCA. United States v. Shell, 789 F.3d 335, 339 (4th Cir. 2015); see also United States v. Brown, 765 F.3d 185, 189 (3d Cir. 2014). In Johnson, after reviewing the categorical approach, the Supreme Court held that the language of ACCA's residual clause was so vague as to deny fair notice of what conduct is prohibited and invite arbitrary enforcement in violation of due process. Johnson, 135 S. Ct. at 2557-59. It is therefore unconstitutional to increase a defendant's sentence based on this vague language. Id. After Johnson, a defendant convicted under 18 U.S.C. ? 922(g) whose ACCA sentence depends in any part on the residual clause may be sentenced to a maximum of ten years' imprisonment. Subjecting a defendant whose ACCA sentence depends in part on the residual clause to a mandatory minimum of 15 years' imprisonment violates the Constitution. Johnson, 135 S. Ct. at 2560. Movant does not qualify as an armed career criminal because he does not have three prior convictions that qualify as predicate offenses under the ACCA. Movant's previous convictions for aggravated assault and simple assault do not "ha[ve] as element[s] the use, attempted use, or threatened use of physical force against the person of another," as required by the element-off force clause of t
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