Filed: Mar. 03, 2011
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 09-15150 MARCH 3, 2011 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket Nos. 08-00248-CV-1-ODE, 02-00045-1-ODE ALEX SESSIONS, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (March 3, 2011) Before WILSON, ANDERSON and BLACK, Circuit Judges. PER CURIAM:
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 09-15150 MARCH 3, 2011 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket Nos. 08-00248-CV-1-ODE, 02-00045-1-ODE ALEX SESSIONS, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (March 3, 2011) Before WILSON, ANDERSON and BLACK, Circuit Judges. PER CURIAM: ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-15150
MARCH 3, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D. C. Docket Nos. 08-00248-CV-1-ODE,
02-00045-1-ODE
ALEX SESSIONS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 3, 2011)
Before WILSON, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
Alex Sessions, a federal prisoner serving a 324-month sentence for
conspiracy to possess with intent to distribute at least five kilograms of cocaine,
seeks to vacate his conviction. This case comes to us on a certificate of
appealability issued by the district court on a single issue: whether counsel may be
deemed ineffective for failure to comply with Addendum Four of the Eleventh
Circuit’s Criminal Justice Act (“CJA”) Plan. We are not able to answer this
question because a core factual question was not conclusively determined by the
district court. Therefore, we vacate the district court’s order denying § 2255 relief
to Sessions and remand the case for initial fact-finding on the question of whether
Sessions’s counsel informed him of this right to petition the Supreme Court for a
writ of certiorari.
Sessions argues that his counsel failed to inform him of his right to seek
certiorari review in the Supreme Court, in violation of this Court’s CJA Plan.1 He
further asserts that his counsel was ineffective for failing to properly inform him of
1
Addendum Four (f)(5) of the Eleventh Circuit CJA Plan provides:
If the decision of this court is adverse to the client, counsel shall
inform the client of the right to file a petition for rehearing or
petition for rehearing en banc in this court, or to petition the
Supreme Court of the United States for a writ of certiorari.
Counsel shall file a petition for rehearing, a petition for rehearing
en banc, or a petition for a writ of certiorari if requested to do so
by the client in writing, but only if in counsel’s considered
judgment sufficient grounds exist.
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this right and that he was prejudiced because he would have filed for certiorari
review had he learned of his right to do so. Finally, Sessions argues that the
district court should have granted him an evidentiary hearing to resolve the
disputed facts regarding this particular issue.
“In a Section 2255 proceeding, we review legal issues de novo and factual
findings under a clear error standard.” Thomas v. United States, 572 F.3d 1300,
1303 (11th Cir. 2009) (quotation omitted). “A claim of ineffective assistance of
counsel is a mixed question of law and fact that we review de novo.” Gordon v.
United States,
518 F.3d 1291, 1296 (11th Cir. 2008) (citation omitted).
We have held that if the movant “alleges facts that, if true, would entitle him
to relief, then the district court should order an evidentiary hearing and rule on the
merits of his claim.” Aron v. United States, 291 F.3d 708, 715 (11th Cir. 2002)
(quotation omitted). Stated differently, a district court must conduct an evidentiary
hearing in a § 2255 proceeding “unless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no relief.’” Anderson v.
United States,
948 F.2d 704, 706 (11th Cir. 1991) (footnote omitted).
After reviewing the record, we determine that the case must be remanded to
the district court for fact-finding on the question of whether Sessions’s counsel
informed him of his right to seek certiorari review in the Supreme Court. The
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district court, without holding an evidentiary hearing, denied Sessions’s § 2255
motion, in part on the grounds that Sessions’s counsel advised him that he would
consider filing a petition for a writ of certiorari in the United States Supreme
Court. District Court Order, Doc. 1264 at 19. However, the court, in its
subsequent order granting the certificate of appeal, acknowledged that this finding
did not clearly answer the question of whether counsel informed Sessions of his
right to petition the Supreme Court. District Court Order, Doc. 1290 at 11. The
district court’s certification of the issue to this Court demonstrates that it was
unable to hold that the motion and the files and records of the case demonstrated
conclusively that Sessions was entitled to no relief. Therefore, the district court
should have conducted an evidentiary hearing to settle this important question of
fact, and its failure to do so was error. See Anderson, 948 F.2d at 706 (vacating
the district court’s decision and remanding for an evidentiary hearing). We decline
to address the hypothetical question of whether it might constitute ineffective
assistance of counsel for an attorney to fail to advise a client of his right to file a
petition for a writ of certiorari in violation of the Criminal Justice Act Plan where
the client asserts that he would have filed such a petition if he had been informed.
If the district court finds on remand that counsel did in fact inform Sessions, the
issue would be moot, and Sessions would have no arguable claim. If the district
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court finds that counsel did not in fact adequately inform Sessions, then we would
prefer to have the district court’s opinion on the merits of the issue.
Upon review of the record and consideration of the parties’ briefs, we vacate
the district court’s denial of Sessions’s § 2255 motion and remand for initial
fact-finding on the issue of whether Sessions’s counsel informed him of this right
to petition the Supreme Court for a writ of certiorari.
VACATED and REMANDED.
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