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Fred E. Dowell v. United States of America

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ARGUED OCTOBER 31, 2011–

Before KANNE and WILLIAMS, Circuit Judges, and DEGUILIO, District Judge.*fn1

Fred Dowell signed a plea agreement that specifically reserved his right to appeal “career offender” designation if the district court found him to be one at sentencing. After the court made this designation, Dowell claims that he then directed his attorney to file a notice of appeal to contest whether he was a career offender. However, his counsel did not file the notice of appeal. So Dowell filed a 28 U.S.C. § 2255 motion asserting that his counsel’s failure to file the directed appeal constituted ineffective assistance of counsel. The government opposed the motion, arguing that Dowell’s agreement in his plea not to challenge his sentence on collateral attack precluded relief. We agree with Dowell that if he told his attorney to appeal the issue specifically reserved in his plea for appeal and counsel did not do so, he received ineffective assis- tance of counsel which can be corrected in a § 2255 pro- ceeding. We remand to the district court to make a de- termination as to whether Dowell told his attorney to file the appeal.

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