                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                       No. 10-4459
                                       __________

                           UNITED STATES OF AMERICA

                                            v.

                                 JAMES A. RUSSELL,
                                             Appellant
                                    __________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (D.C. No. 2-05-cr-00721)
                        District Judge: Hon. Joseph H. Rodriguez

                                       __________

                       Submitted under Third Circuit LAR 34.1(a)
                                    April 16, 2012

             Before: VANASKIE, ALDISERT and BARRY Circuit Judges.

                                   (Filed: May 2, 2012)

                                       __________

                               OPINION OF THE COURT
                                     __________
ALDISERT, Circuit Judge.

       James Russell appeals the judgment of the United States District Court for the
Eastern District of Pennsylvania, entered on November 17, 2010, denying Russell’s

motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. For the
reasons that follow, we conclude that the District Court’s order denying the motion will

be vacated and the case remanded to the District Court for an evidentiary hearing on
Russell’s ineffective-assistance-of-counsel allegation.

                                             I.

       Because we write primarily for the parties, who are familiar with the facts and the
proceedings in the District Court, we will revisit them only briefly.

                                             A.

       James Russell was charged with mailing a threatening communication, in violation
of 18 U.S.C. § 876(c). The charge arose from Russell’s mailing of a threatening letter to

United States District Judge Harvey Bartle III while incarcerated at a Pennsylvania state

correctional facility. The letter referred to an earlier prosecution, over which Judge Bartle

presided, and in which Russell was sentenced to 53 months’ imprisonment consecutive to

the state sentence he was serving.

       On July 20, 2006, Russell, who was then represented by the Federal Defenders
Office, entered an “open” guilty plea to the indictment. App. 00004. In his sentencing

memorandum and at his sentencing hearing, Russell urged the District Court to impose a

sentence to run concurrently with his other federal sentence. Simultaneously, Russell

filed a pro se sentencing memorandum requesting a downward departure.

       At the April 19, 2007, sentencing hearing, the District Court imposed a term of 41

months’ imprisonment, but did not specify whether the term was to run concurrently or
consecutively. Russell timely appealed his sentence to our Court. The government agreed

that the case should be remanded, and, based upon the agreement of the parties, we

dismissed Russell’s appeal on December 20, 2007.




                                              2
       Russell was subsequently resentenced. At that time, Russell’s newly appointed

attorney, Joseph Mitchell III, urged the District Court to impose a concurrent sentence
and to show leniency. Mitchell also urged the District Court to grant the renewed motion

for a downward departure. The District Court denied the motion and imposed a sentence

of 33 months, to run consecutively to Russell’s other federal sentence.
       At the conclusion of the hearing, Russell informed the Court: “And for the record,

I’m satisfied with the sentence. Thank you. And I would not be filing an appeal on that.

Thank you very much.” App. 00004. Russell soon realized, however, that he was not, in
fact, satisfied with his sentence. Russell asserts that two days after the sentencing hearing,

on April 9, 2009, he notified Mitchell that he had changed his mind and directed him to

file an appeal on his behalf. 1 Mitchell did not file an appeal.

                                              B.

       On October 13, 2009, Russell filed a pro se § 2255 motion presenting six

arguments: (1) that the District Court failed to properly apply the Sentencing Guidelines;

(2) that Mitchell was ineffective for failing to argue that the Guidelines required a

concurrent sentence; (3) that the prosecution misled the District Court regarding its

authority to impose a concurrent sentence; (4) that Mitchell was ineffective for failing to

counter the government’s argument; (5) that the District Court erred in failing to credit

his time already spent in federal custody toward his sentence; and (6) that Mitchell was

ineffective for failing to seek an award of such credit. Russell wrote on the form motion

that none of the grounds were presented previously because his “counsel ‘refused’ to

raise them.” App. 00039.



1
 Russell has presented a copy of the handwritten letter to Mitchell, dated April 9, 2009.
As explained below, the government disputes the letter’s authenticity.
                                               3
       In its response, the government challenged Russell’s motion on procedural

grounds, arguing that Russell’s claims relating to trial court error and prosecutorial
misconduct were procedurally barred because he failed to raise the claims on direct

appeal and failed to show cause for this default.

       In his reply, Russell rebutted the government’s assertion of procedural default,
asserting that such a default may be waived upon a showing of cause and prejudice. With

respect to cause, Russell explained that he did not pursue the issues on direct appeal

because his attorney failed to heed his direction to file such an appeal. In support of this
statement, Russell filed with his reply a copy of a handwritten letter he sent to his

attorney on April 9, 2009—two days after his resentencing hearing. 2 Russell’s reply

raised additional arguments that were not contained in his § 2255 motion. 3 Although
these claims were not raised in Russell’s § 2255 motion, Russell suggested that these

arguments were included in an amended § 2255 petition filed at some unspecified time.

       In its November 15, 2010 opinion and order, the District Court denied Russell’s

motion. In relevant part, the Court explained the effect of Russell’s counsel’s failure to

file an appeal as follows:

       Russell alleges that his failure to directly appeal is the fault of his counsel,
       who refused to raise the issues on appeal. “A successful claim of ineffective
       assistance of counsel . . . satisfies the ‘cause’ prong of a procedural default
       inquiry.” United States v. Garth, 188 F.3d 99, 107 (3d Cir. 1999) (citation
       omitted). Because the Court finds that Russell cannot satisfy the
       “prejudice” prong of the default inquiry, it will not consider whether
       Russell has demonstrated requisite cause.

2
 The government asserts that the letter is fraudulent because Russell’s attorney was not
occupying the address on the envelope until sometime in July 2009.
3
 The reply brief argued that the government had breached a plea agreement by
advocating a consecutive sentence at the sentencing hearing and that the government’s
conduct violated Russell’s due process. Russell requested an evidentiary hearing to
determine whether he may withdraw his guilty plea.
                                              4
App. 00007. The District Court declined to issue a COA pursuant to 28 U.S.C. § 2253(c).

                                              C.
       On December 1, 2010, Russell filed a pro se notice of appeal of the District

Court’s order and moved in this Court for a COA. This motion presented a number of

issues that were not included in his § 2255 motion. On May 19, 2011, this Court granted
Russell’s application for a COA, limited to the following issue: “whether the counsel was

ineffective for failing to file a direct appeal.” App. 00016.

                                              II.

       The District Court had subject matter jurisdiction over the case pursuant to 18

U.S.C. § 3231, and over Russell’s collateral petition under 28 U.S.C. § 2255. We have

jurisdiction over this matter under 28 U.S.C. §§ 1291 and 2253. We exercise plenary

review over the District Court’s decision “because both the performance and prejudice

prongs of ineffective assistance of counsel claims present mixed questions of law and

fact.” United States v. Cross, 308 F.3d 308, 314 (3d Cir. 2002) (citing Duncan v. Morton,

256 F.3d 189, 200 (3d Cir. 2001)).

                                             III.

       The only issue before us is whether Russell’s attorney was ineffective for failing

to file a direct appeal. Although it cannot be questioned that we retain jurisdiction over

this matter once the COA issued, see Gonzalez v. Thaler, 132 S. Ct. 641, 649-650 (2012),

the government contends that we should hold that the COA was improvidently granted.

See United States v. Marcello, 212 F.3d 1005, 1007-1008 (7th Cir. 2000) (“In a situation

like this—a bit of a procedural morass—we think the best approach is to say we have

discretion to decide the case by reviewing the validity of the [COA] or by going straight
to the issues raised on the appeal.”). We decline the government’s invitation to review


                                              5
our grant of the COA. See Gatlin v. Madding, 189 F.3d 882, 887 (9th Cir. 1999) (“[O]nce

a COA has been issued without objection by this court, the procedural threshold for
appellate jurisdiction has been passed and we need not revisit the validity of the

certificate in order to reach the merits.”). 4

       Moving on to the merits, we must decide “whether [Russell’s] counsel was
ineffective for failing to file a direct appeal.” App. 00016. As the government concedes,

this “issue . . . is not a complicated one.” Brief for United States 18. “[W]hen counsel’s

constitutionally deficient performance deprives a defendant of an appeal that he
otherwise would have taken, the defendant has made out a successful ineffective

assistance of counsel claim entitling him to an appeal.” Roe v. Flores-Ortega, 528 U.S.

470, 484 (2000). A case in which a lawyer fails to file a direct appeal, contrary to the

client’s instructions, “is quite different from a case in which it is claimed that counsel’s

performance was ineffective. As [the Supreme Court] stated in Strickland, the ‘[a]ctual or

constructive denial of the assistance of counsel altogether is legally presumed to result in

prejudice.’” Penson v. Ohio, 488 U.S. 75, 88 (1988) (citing Strickland v. Washington,

466 U.S. 668, 692 (1984)).

       On the record before us, however, we are unable to adjudicate the merits of this

claim. Russell has submitted a copy of the letter he claims to have sent to Mitchell

directing him to file an appeal. Mitchell, however, was apparently not occupying the

location to which the letter was addressed at the time Russell mailed it. The April 9,


4
 Like our sister Court of Appeals, we do not “mean to foreclose a challenge to the
propriety of a COA issued by a district court—which is not the posture of the case before
us—[n]or in timely response to a petitioner’s request in this [C]ourt.” Id. Similarly, we do
not mean to foreclose the possibility of challenging the propriety of a COA granted by
this Court. Simply put, in this instance, we decline the government’s invitation to review
our grant of the COA in the unique circumstances presented by this appeal.
                                                 6
2009, letter, which Russell asserts was his timely instruction to Mitchell to file an appeal,

is addressed to Mitchell at 1500 JFK Boulevard, Suite 1700, in Philadelphia. The
government asserts, however, that, on April 9, 2009, Mitchell still occupied Suite 520 at

that location, and did not move into Suite 1700 until sometime after July 2009.

“Inasmuch as these questions can be decided only after an evidentiary hearing, however,
and because the district court did not hold such a hearing, we shall remand the case for

this purpose.” United States v. Ackerman, 619 F.2d 285, 288 (3d Cir. 1980).

                                             IV.

       For the foregoing reasons, the District Court’s order denying the § 2255 motion

will be vacated and the case remanded to the District Court for an evidentiary hearing on

the ineffective-assistance-of-counsel allegation.




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