by Dale Chappell

In an unusual move, the U.S. District Court for the Northern District of Texas rejected the typical remedy under 28 U.S.C. § 2255 and instead opted to grant a “judicial remedy” to allow an out-of-time appeal, where the Court found that counsel was ineffective for failing to file a direct appeal.

Perhaps one of the most common claims under § 2255 is ineffective assistance of counsel (“IAC”) for failing to file a requested appeal in a criminal case. That’s what Devonte Dillard claimed in his § 2255 motion, and that’s the claim the Court agreed deserved relief. But how the Court granted Dillard relief was not the way most other courts have typically done it.

Dillard pleaded guilty in 2016 to conspiracy to commit Hobbs Act robbery under 18 U.S.C. § 1951 and to using a firearm in furtherance of that conspiracy under 18 U.S.C. § 924(c). He was then sentenced to 20 years in federal prison without parole, 10 years for the conspiracy and 10 years for the firearm, running consecutively. He did not appeal. Instead, Dillard moved for relief under § 2255 claiming that (1) his § 924(c) conviction was now unconstitutional in light of the U.S. Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019), and (2) that counsel was ineffective for failing to file an appeal.

As to the relief requested, Dillard argued that the Court should grant his motion with respect to the Davis claim by vacating his § 924(c) conviction and then reenter the sentencing judgment to allow him to take an out-of-time appeal. After conducting an evidentiary hearing and finding IAC, the magistrate judge filed a report and recommendation (“R&R”) that the district judge should grant Dillard’s appeal claim but dismiss without prejudice his firearm claim. Even though the R&R recommended granting his motion, Dillard still filed “objections” to the R&R, pushing for his alternative remedy.

The § 2255 Remedy to Allow
an Out-of-Time Appeal

Under § 2255, if a court finds a sentence or conviction is unconstitutional, it “shall vacate and set the judgment aside and shall [1] discharge the prisoner or [2] resentence him or [3] grant a new trial or [4] correct the sentence.” In United States v. West, 240 F.3d 456 (5th Cir. 2001), the court recognized that § 2255 does not expressly allow a court to vacate a judgment and then reimpose it to allow an appeal as a remedy; however, it also “is not prohibited by § 2255.” The court then clarified that a district court may fashion a § 2255 remedy to allow an out-of-time appeal by vacating the judgment, re-imposing the same judgment, and then dismissing all remaining claims in the motion without prejudice (to allow them to be raised again in a later motion). This § 2255 remedy is the most common method in nearly every court for granting an out-of-time appeal due to counsel’s failure to file a requested appeal.

The “Judicial Remedy” to Allow
an Out-of-Time Appeal

The West Court also recognized another remedy, called the “judicial remedy,” whereby an out-of-time appeal may be granted but not by way of § 2255. It described the remedy this way: “Under the judicial remedy crafted in our circuit’s precedent, the same result can be reached by granting an out-of-time appeal and re-entering the criminal judgment as by vacating the judgment and resentencing” with the same sentence. In other words, it’s a judge-created remedy that has evolved through years of court decisions. The West Court explained that with this remedy, “a court must deny the statutory remedy [under § 2255], for it is inconsistent to ‘grant’ § 2255 in name, yet deny it in substance by refusing to apply the remedy it provides” under the four options in the statute.

Application of the Judicial
Rule in Dillard’s Case

District Judge Sam Lindsay said he was “not convinced that granting [Dillard] relief under section 2255 is the best course of action.” Instead, he “modified” the R&R and agreed that a judicial remedy was the best resolution. First, he found that since the issue of whether Dillard’s § 924(c) conviction should be vacated was never addressed in the R&R, it exceeded the scope of the R&R. [Writer’s note: While the district judge may outright “reject” the R&R and address any issue in the motion, Judge Lindsay did not take this route.] Judge Lindsay then turned his attention to Dillard’s failure to appeal the claim.

For such a claim, the judge discussed the two remedies in West. After comparing the two, he reiterated that by granting § 2255 relief he would have had to choose one of the statutory remedies in § 2255. But with a judicial remedy, he could reenter the criminal judgment to allow the appeal and dismiss Dillard’s entire motion without prejudice.

Dillard’s Appeal Waiver

The Government had argued that Dillard’s appeal waiver in his plea agreement foreclosed the relief he was seeking in claim 1, i.e., that his firearm conviction should be vacated in light of Davis. The Government, however, conceded that he would be allowed to file an appeal despite his waiver and therefore agreed to relief on the appeal claim. While not expressly mentioned by the Government, its position aligns with the Supreme Court’s recent decision in Garza v. Idaho, 139 S. Ct. 738 (2019), which ruled that counsel may still be ineffective for failing to file an appeal, even with the existence of an appeal waiver.

After the appeal is filed, the Government may then choose to enforce the waiver on Dillard’s firearm claim, or it may choose to ignore the waiver and concede relief. The court of appeals may even find that Dillard is now “actually innocent” of his firearm conviction, as some courts have done in similar cases, and conclude that the waiver doesn’t apply under the “miscarriage of justice” exception. See, e.g., United States v. Reece, 928 F.3d 630 (5th Cir. 2019) (finding § 924(c) claim not procedurally defaulted because defendant was “actually innocent of those charges under Davis”). Judge Lindsay chose to let the court of appeals decide that issue and declined to address Dillard’s appeal waiver.

The Fifth Circuit’s Unusual Rule
on Granting § 2255 Relief for an Out-of-Time Appeal

The Court’s judicial remedy also prevented a sticky situation for Dillard, should he later file another § 2255 motion after his appeal. In the Fifth Circuit, claims dismissed without prejudice in a § 2255 motion granted to permit an out-of-time appeal may be raised in another motion filed after the appeal. But any new claims that could have been raised in the original motion, but were not, are barred as “second or successive.” The Fifth Circuit and the First Circuit are the only circuits that follow this rule. United States v. Orozco-Ramirez, 211 F.3d 862 (5th Cir. 2000); Pratt v. United States, 129 F.3d 54, 61 (1st. Cir. 1997). Some courts state that the reasoning by those decisions has been abrogated by Supreme Court precedent and should be overturned. Storey v. Vasbinder, 657 F.3d 372 (6th Cir. 2011) (criticizing the rule as contrary to subsequent Supreme Court precedent).

The rest of the circuits, however, allow another § 2255 motion after an out-of-time appeal has been permitted by granting a § 2255 motion, which includes allowing any new claims. See, e.g., Wiles v. United States, 2016 U.S. Dist. LEXIS 23235 (M.D. Fla. 2016) (allowing another § 2255 motion with new claims after first motion was granted to allow an out-of-time appeal).

Conclusion

Accordingly, the Court directed the court clerk in Dillard’s case to reenter the sentencing judgment and then file a notice of appeal on his behalf, and the Court dismissed without prejudice Dillard’s entire § 2255 motion. See: Dillard v. United States, 2020 U.S. Dist. LEXIS 13603 (N.D. Tex. 2020).

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