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United States v. Todd

Twenty year old judgment of sentence following guilty plea remanded for further development of record because counsel may have been ineffective in failing to inform defendant of right to appeal, transcript of plea hearing was lost, and many of defendant's claims relied on facts neither fully litigated nor part of appellate record.

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Argued March 19, 2002

Twenty years ago, a federal grand jury in the District of Columbia indicted appellant Troy Mitchell Todd for various drug offenses. Extradited from Australia after fleeing the country, Todd pleaded guilty to one count of drug trafficking conspiracy and one count of possession with intent to distribute cocaine. The district court imposed two concurrent five- to fifteen-year sentences, followed by a three-year term of “special parole” (the preSentencing Guidelines term for “supervised release”) on the possession-with-intent-to-distribute count, and concurrent fines of $1000 and $5000. Todd did not appeal. Years later, following his release from prison, Todd had another run-in with the law, this time in Florida, where he again pleaded guilty to federal drug offenses. Due to the District of Columbia conviction, his Florida sentence was doubled.

Proceeding pro se in the district court here, Todd then filed a section 2255 motion to vacate the District of Columbia conviction and sentence. See 28 U.S.C. s 2255 (setting forth procedures for collateral attack on federal criminal conviction). Among other things, he claimed his trial counsel failed to advise him of his right to appeal. With the Government’s consent, the district court held the section 2255 motion in abeyance. Then, finding that Todd’s lawyer had in fact failed to advise him of his right to appeal, the district court resentenced Todd so that he could file a timely appeal. See Fed. R. App. P. 4(b) (requiring criminal defendant to file a notice of appeal within 10 days of judgment). We vacated the new sentence and remanded for reconsideration in light of Roe v. Flores-Ortega, 528 U.S. 470 (2000), which held that defense counsel’s failure to file an appeal is not per se ineffective assistance but instead must be analyzed under the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984). See Flores-Ortega, 528 U.S. at 478. Applying Strickland, the district court found defense counsel ineffective, again resentencing Todd. This appeal followed.

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