August 22, 2019

Tenth Circuit: Defendant Received Ineffective Assistance of Counsel When His Attorney Disregarded His Request to Appeal

The Tenth Circuit issued its opinion in Clayton v. Jones on Friday, November 16, 2012.

Mr. Clayton entered a blind guilty plea to five counts in state court, including second degree murder. He received a life sentence for the murder charge. He was represented by counsel. During the plea and  sentencing proceedings, the state court informed Mr. Clayton that he had a right to appeal the decision and that he had ten days in which to do so. The court also asked his attorney to stay on as Mr. Clayton’s attorney for a period of ten days and stay on through any appeal time that might run. Neither an application to withdraw the plea nor a direct appeal was filed. Mr. Clayton filed both a pro se application for post-conviction relief (which was denied), and then appealed the state court’s ruling to the Oklahoma Court of Appeals, which affirmed the state court’s denial of post-conviction relief.

Mr. Clayton filed a petition for habeas relief in federal district court, which was denied as procedurally barred. The Tenth Circuit granted a certificate of appealability, vacated the district court judgment, and remanded for a hearing to determine whether Mr. Clayton requested counsel to file an appeal.

At this evidentiary hearing, evidence was presented that Mr. Clayton asked his state court attorney to file an appeal, but no appeal was filed. The State failed to refute Mr. Clayton’s allegation. The magistrate recommended the case be held in abeyance for not longer than 120 days to allow Mr. Clayton to withdraw his guilty plea.

On appeal, the State first argued that the district court committed clear error in finding that Mr. Clayton asked his attorney to file an appeal. Because appeals are part of the criminal process, a defendant is denied effective assistance of counsel if he asks his lawyer to perfect an appeal and the lawyer fails to do so. Ample evidence supported the district court’s finding that Mr. Clayton’s attorney failed to comply with his request to file an appeal. The Tenth Circuit concluded that Mr. Clayton received ineffective assistance of counsel when his attorney disregarded his request to appeal.

The district court further granted Mr. Clayton a conditional writ, allowing him 120 days to withdraw his guilty plea. The State argued this remedy was an abuse of discretion. Since neither the magistrate’s report nor the district court’s order explained why this was the appropriate form of relief, the Tenth Circuit was unable to review the district court’s decision. To facilitate review, the Tenth Circuit ordered a limited remand to allow the district court to clarify why it granted Mr. Clayton a withdrawal of his guilty plea, rather than an appeal out of time.

The Tenth Circuit retained jurisdiction over the appeal.

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