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Posted: September 19, 2014

Habeas Petitioner Entitled To Hearing On Whether Counsel Ignored Instruction To File Notice Of Appeal

On August 28, 2014, the Second Circuit issued a decision in Zazi v. United States, 13-2437-PR, holding that the EDNY erred in not holding a hearing on the question of whether a habeas corpus petitioner’s counsel ignored the petitioner’s instructions to file a notice of appeal.

In Zazi, the EDNY denied without hearing a petition for habeas corpus including a claim that the petitioner was “denied effective assistance of counsel by his lawyer’s failure to file a timely notice of appeal.” The Second Circuit reversed, explaining:

Our precedent holds that “a lawyer who disregards a defendant’s specific instruction to file a notice of appeal acts in a manner that is professionally unreasonable. Thus, even where, as here, a petitioner has waived his right to appeal, we have held that a claim that counsel failed to file a requested notice of appeal warrants a hearing before the district court to determine whether such a request was in fact made.

Because no such hearing was conducted here, on consent of the parties, we remand this case to the district court to conduct an evidentiary inquiry into [petitioner’s] claim that counsel was constitutionally ineffective in failing to file a requested notice of appeal, leaving the scope and nature of that hearing to the discretion of the district court.

(Internal citations omitted) (emphasis added).

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