                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-3-2009

Irvine Hodge, Jr. v. USA
Precedential or Non-Precedential: Precedential

Docket No. 08-1918




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                              PRECEDENTIAL
      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                     No.08-1918
                   _____________

                IRVINE HODGE, JR.,

                           Appellant

                           v.

          UNITED STATES OF AMERICA
                _____________

On Appeal from the District Court of the Virgin Islands
               (D.C. No. 04-cv-00044)
          District Judge: Raymond L. Finch
                  _______________

              Argued December 8, 2008

Before: FISHER, JORDAN and STAPLETON, Circuit
                   Judges,

               (Filed: February 3, 2009)
                  _______________
David R. Fine [ARGUED]
K&L Gates
17 North Second Street
18 th Floor, Market Square Plaza
Harrisburg, PA 17101
        Counsel for Appellant

Nelson L. Jones [ARGUED]
Office of the United States Attorney
5500 Veterans Building, #260
Charlotte Amalie, St. Thomas
USVI 00802-6924
       Counsel for Appellee
                      _______________

                 OPINION OF THE COURT
                     _______________

JORDAN, Circuit Judge.

       Pursuant to identical plea agreements, Irvine Hodge, Jr.

and his brother Devin 1 were sentenced at the same proceeding

to life imprisonment for the murder of a jewelry store owner on

St. Thomas in the U.S. Virgin Islands. Devin’s counsel timely


  1
  Throughout the remainder of this opinion, we refer to Irvine
Hodge, Jr. as “Hodge” and to Devin Hodge as “Devin.”

                              2
appealed his client’s sentence. Hodge’s counsel, however, filed

a litany of motions but never a notice of appeal. In an earlier

decision, we vacated Devin’s sentence because the government

had breached its plea agreement by implicitly requesting a life

sentence. United States v. Hodge, 412 F.3d 479 (3d Cir. 2005).

In the meantime, having lost the opportunity to directly appeal,

Hodge moved for collateral relief under 28 U.S.C. § 2255 and

argued, as his brother had, that the government had breached its

plea agreement with him. The District Court denied Hodge’s

motion. For the reasons that follow, we will reverse the District

Court’s denial of Hodge’s 2255 motion, vacate his sentence, and

remand with instructions for the District Court to reenter the

sentence so that Hodge has a second opportunity to file a direct

appeal.




                               3
I.     Background

       In 1998, Hodge and his brother robbed a jewelry store

and killed the store’s owner. They were charged with first

degree murder, in violation of 18 U.S.C. § 924(j)(1); interfering

with commerce, in violation of 18 U.S.C. § 1951; and tampering

with a witness by killing, in violation of 18 U.S.C. § 1512(a).

       Hodge entered into a plea agreement with the

government in April 2000. In exchange for his guilty plea to a

charge of first degree murder and his promise to make

restitution for the robbery, Hodge obtained from the government

a promise to seek dismissal of the remaining charges, to

recommend that the sentencing judge give him credit for

accepting responsibility for the crime, and “to make no specific

sentencing recommendation other than to request that the

sentence be within the guideline range.” (App. at 47-50.) As

part of a “package deal,” Devin signed an identical plea

                               4
agreement. See Hodge, 412 F.3d at 480, 482. On May 2, 2000,

the District Court of the Virgin Islands conducted a joint

change-of-plea hearing for Hodge and Devin, at which the

brothers were represented by separate counsel.2

       The following month, Hodge and the government entered

into a supplemental plea agreement. Under its terms, Hodge

“agree[d] to    provide   truthful, complete, and      accurate

information and testimony” and to cooperate fully with an

ongoing government investigation. (App. at 107-11.) The

government, in turn, promised to “[m]ake the nature and extent

of [Hodge’s] cooperation known to the Court” and to “[m]ake

a motion to allow the Court to depart from the Sentencing

Guidelines,” provided that Hodge had fulfilled the conditions of

the deal.   (App. at 111.)     The government retained sole


   2
    Hodge was represented by the same attorney at all times
relevant to this appeal.

                               5
discretion to decide whether and to what degree Hodge had

cooperated.

       The District Court sentenced Hodge and Devin at a single

proceeding on March 6, 2002.          In response to Hodge’s

allocution, in which he expressed remorse for his crime, the

prosecutor remarked:

       [I]t always amazes me that once a person gets
       convicted and spends some time in jail, pending
       sentencing, two things happen. They usually find
       religion, and they usually find great remorse. ...
       Whether the remorse is genuine or not, I leave for
       a higher power to determine. But at some point
       this defendant has to realize that there are grave
       consequences for your actions.

(App. at 156.) He then “ask[ed] the Court to fashion a sentence

as fair and as just, and that sends a clear message: You may go

out with the intention of [] committing a robbery, but if someone

dies while you’re committing that robbery, there are grave

consequences to your actions.” (App. at 157.) After Devin


                               6
allocuted, the prosecutor made similar statements.3 The record

does not indicate that the government made any mention to the

Court of Hodge’s cooperation, and the government did not file

a motion to allow the Court to depart from the sentencing

guidelines.   Hodge and Devin each were sentenced to life

imprisonment.

       After announcing the sentences, the District Court

instructed Hodge and Devin that they had ten days in which to

file their notices of appeal. Devin timely filed his notice of

appeal, and, as earlier noted, we vacated his sentence, holding

that the government had breached the plea agreement by


  3
    For example: “But the point is, Your Honor, that someone
that evil, to have complete transformation in a four-year period,
it begs the question, is it genuine or isn’t it? ... We ask the Court
to fashion a sentence that is fair, that is just ... . Because Devin
Hodge had his chance to be a positive influence in the
community. Larry Davis [the deceased jewelry store owner]
was a positive influence in this community. He doesn’t get a
second chance.” (App. at 173-74.)

                                 7
implicitly requesting a sentence of life imprisonment. Hodge,

412 F.3d at 487. On remand, the District Court resentenced

Devin to a term of 450 months.

       Unlike his brother, Hodge did not file a direct appeal.

Instead, on March 11, 2002, his counsel filed a motion to correct

Hodge’s sentence pursuant to Fed. R. Crim. P. 35. That same

day, the Court entered an amended judgment of sentence to

correct certain clerical errors.4 On April 2, 2002, Hodge’s

counsel then filed what was styled as a “Motion to Have

Conceded the Motion to Correct Sentence” and, eight months

later, something he called an “Information Motion.” In the

Information Motion, Hodge’s counsel noted:

       That I am advised by Defendant that he recently
       sought, pro se, to have the Court appoint counsel



  4
   The record does not indicate what errors, in particular, the
District Court corrected.

                               8
       for his appeal. However, Defendant was advised
       that no notice of appeal was filed.

              Undersigned counsel is of the opinion that
       the post[-]trial motion[s] filed by Defendant on
       March 11, 2002 and April 2, 2002 are appropriate
       for an Order of the District Court before
       Defendant’s timeliness for filing an appeal, if
       necessary, can be ascertained. Otherwise the
       Defendant is held in the procedural [l]imbo [in
       which] he now finds himself.

(App. at 193.)

       On March 3, 2003, Hodge wrote to his attorney,

expressing confusion as to why an appeal had never been filed

in his case and asking counsel to “[d]o whatever needs to be

done so that I can have a chance to ‘appeal’ the life ... sentence

I received on March 6, 2002.” (App. at 195.) Attached to the

letter was a notice that Hodge had received from this Court

telling him that we could not consider a motion to file his appeal

out of time because the District Court had to address such a

motion in the first instance.

                                9
         Hodge proceeded pro se to request the District Court to

allow him to file a notice of appeal out of time, but the Court

denied that request on December 31, 2003. On January 7, 2004,

the District Court denied the “Motion to Have Conceded the

Motion to Correct Sentence.” The Court contemporaneously

directed Hodge to notify it by February 16 whether he wanted to

have his earlier motion to correct his sentence recharacterized as

a motion for collateral relief under 28 U.S.C. § 2255.

       On January 30, 2004, Hodge’s counsel filed a document

entitled “Post-Trial Motion for Correction of Error and

Reconsideration,” in which he wrote that, should the Court

decline to reconsider its December 31, 2003 Order, Hodge

wished    to   have   the   motion   to   correct his    sentence

recharacterized as a 2255 motion.         Although the record is

unclear, it seems that the Court must have denied the motion for

reconsideration.

                               10
       On March 1, Hodge’s counsel timely filed a document in

support of Hodge’s 2255 motion, using a standardized form

provided by the Court.5     In it, he argued, first, that the

government had breached its plea agreement with Hodge by not

advising the Court of the substantial assistance that Hodge had

provided; and, second, that Hodge “was not advised that his

right to appeal would terminate on April 24, 2002.        That

knowledge did not come until the District Court made its

decision of December 31, 2003.” (App. at 44.)

       On August 16, 2005, Hodge, acting pro se, filed a

“Motion to Submit Memorandum of Law in Support of § 2255

Petition” (the “Supplemental Memorandum”), in which he

provided argument in support of his claims that the government


  5
   Hodge claims, and the government does not dispute, that the
District Court told him that he would have thirty days to
supplement his claims, after providing notice that he chose
recharacterization.

                              11
had breached the plea agreement and that he was denied the

right to appeal. Besides arguing that the government had failed

to advise the Court of his cooperation, Hodge claimed, in

keeping with our then-recently issued opinion in his brother’s

appeal, that the government had also breached its agreement by

tacitly recommending that he receive a life sentence. Most

importantly for this appeal, Hodge also argued that, “as a result

of trial counsel’s erroneous advice and deficient performance [,

movant] was denied his due process right to a direct appeal.”

(App. at 210.) Specifically, he claimed:

       [T]rial counsel promised ... he would file a
       prompt notice of appeal. However, contrary to his
       promise[,] trial counsel instead filed a Rule 35
       Motion to Correct Sentence ... . Counsel went on
       to inform [movant] that he did not have to worry
       about the time period in which to file his appeal
       because the clock would not begin to tick until the
       Court responded to the Motion to Correct
       Sentence.

(App. at 210.)

                               12
       The Court denied Hodge’s 2255 motion on September

19, 2007.    Treating the Supplemental Memorandum as an

attempt to amend that motion, the Court concluded that Hodge

was trying to raise an ineffective assistance claim that was “new

and distinct” from the right-to-appeal claim raised in the 2255

motion. Thus, the Court held, the ineffective assistance claim

was untimely. It further held that all of the claims in the 2255

motion were procedurally defaulted because Hodge had not

raised them on direct appeal and he could not establish actual

innocence or cause for the default and consequent prejudice.

       Hodge timely appealed the District Court’s decision. On

May 30, 2008, we issued a certificate of appealability on two

issues: (1) whether the District Court erred in not allowing the

ineffective assistance and breach-of-plea-agreement claims that

Hodge raised in his Supplemental Memorandum to relate back

to his timely 2255 motion, and (2) whether the assistance of

                               13
Hodge’s counsel was ineffective and, thus, constituted cause for

his procedural default. We now hold that the District Court

erred in not allowing Hodge’s ineffective assistance claim to

relate back to the original 2255 motion and that his counsel’s

failure to initiate the appeals process sunk to a level of

ineffective assistance excusing Hodge’s procedural default.

Because we remand the case for the reentry of Hodge’s initial

sentence so that he can file a direct appeal, we need not reach

the question of whether his claims about breaches of his plea

agreement relate back to his 2255 motion.

II.    Jurisdiction and Standard of Review

       The District Court of the Virgin Islands exercised

jurisdiction over this matter under 28 U.S.C. § 2255 and 48

U.S.C. § 1612. Our jurisdiction arises under 28 U.S.C. § 1291.6


       6
       We granted a certificate of appealability on the
aforementioned issues pursuant to 28 U.S.C. § 2253(c), after

                              14
We review the District Court’s interpretation of the relation back

doctrine de novo. See United Auto. Workers Local 259 Social

Sec. Dept. v. Metro Auto. Ctr., 501 F.3d 283, 286 (3d Cir. 2007)

(conducting plenary review of district court’s interpretation of

procedural rules); Hartmann v. Carroll, 492 F.3d 478, 480 (3d

Cir. 2007) (“Our review of the timeliness of a federal habeas

application is plenary.”). We also undertake plenary review of

a district court’s conclusions as to procedural default. Fahy v.

Horn, 516 F.3d 169, 179 (3d Cir. 2008).




applying the standard set forth in Slack v. McDaniel, 529 U.S.
473, 484 (2000) (“When the district court denies a habeas
petition on procedural grounds without reaching the prisoner’s
underlying constitutional claim, a [certificate of appealability]
should issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.”).

                               15
III.   Discussion

       A.     Relation Back

       Hodge concedes that he did not file his Supplemental

Memorandum within the one-year statute of limitations for

habeas petitions prescribed by 28 U.S.C. § 2255(f). He argues,

however, that the District Court should have allowed the claims

he made therein, including the ineffective assistance claim, to

relate back to his timely filed 2255 motion. We agree. In

concluding otherwise, the District Court applied an incorrect

legal standard.

       Under Federal Rule of Civil Procedure 15(c)(1)(B), a

party may properly raise a new claim or defense that would have

been barred by the statute of limitations if the claim or defense

“arose out of the conduct, transaction, or occurrence set out – or

attempted to be set out – in the original pleading.” In United

States v. Thomas, 221 F.3d 430 (3d Cir. 2000), we held that the

                               16
relation back rule applies to 2255 motions “insofar as a District

Court may, in its discretion, permit an amendment ... to provide

factual clarification or amplification ... as long as the [motion]

itself was timely filed and the [movant] does not seek to add an

entirely new claim or theory of relief.” Id. at 436. Because

Thomas sought only to amplify his existing claims with factual

support, we expressly left open “whether a new claim would be

proscribed if that claim ‘arose out of the conduct, transaction, or

occurrence set forth or attempted to be set forth in the original

pleading.’” Id. at 436 n.4 (quoting Fed. R. Civ. P. 15(c)(1)(B))

(emphasis added). However, we did note that at least two

circuits permitted such new claims to relate back. Id. (citing

United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000);

United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999)).

The number of circuits permitting relation back under those



                                17
circumstances increased over the ensuing years,7 and, in 2005,

the Supreme Court in Mayle v. Felix, 545 U.S. 644 (2005),

resolved competing definitions of “conduct, transaction, or

occurrence” in the habeas context, holding that “[s]o long as the

original and amended petitions state claims that are tied to a

common core of operative facts, relation back will be in order.”

Id. at 664.

       The District Court seems to have overlooked Mayle in

considering Hodge’s Supplemental Memorandum. Giving no

mention to that Supreme Court decision, it held that the

ineffective assistance claim in the Supplemental Memorandum

was not a “factual clarification or amplification” of the right-to-

appeal claim set out in the 2255 motion, but was rather a new



  7
  E.g., United States v. Hicks, 283 F.3d 380 (D.C. Cir. 2002);
United States v. Espinoza-Saenz, 235 F.3d 501 (10th Cir. 2000);
Davenport v. United States, 217 F.3d 1341 (11th Cir. 2000).

                                18
and distinct claim that did not relate back under the Thomas

interpretation of Fed. R. Civ. P. 15. (App. at 7-8.) The District

Court thus applied the wrong standard.       After Mayle, it is

apparent that new claims can relate back if they arise from the

same conduct, transaction, or occurrence described in a timely

filed 2255 motion. Therefore, the Court should have asked – as

we ask now – whether both the ineffective assistance claim in

Hodge’s Supplemental Memorandum and the right-to-appeal

claim in his original 2255 motion “are tied to a common core of

operative facts.” Mayle, 545 U.S. at 664.

            The answer to that question is clearly “yes.”

Understandably using the passive voice, Hodge’s counsel

acknowledged that his client had not been “advised that his right

to appeal would terminate on April 24, 2003. That knowledge

did not come until the District Court made its decision of

December 31, 2003.”       (App. at 44.)    In his Supplemental

                               19
Memorandum, Hodge more pointedly explained that his counsel

was the one who had erroneously advised him that the filing of

a motion to correct his sentence would toll the time for filing an

appeal. It is true, as the government notes, that Mayle forecloses

the relation back of a new, untimely claim when it is “supported

by facts that differ in both time and type from those the original

pleading set forth.” 545 U.S. at 650. But the facts undergirding

Hodge’s ineffective assistance claim differ in neither type nor

time from those supporting his right-to-appeal claim: both

concern the erroneous advice that Hodge’s counsel provided

about the filing deadline for the appeal.8



    8
     For this reason, it can be argued that Hodge raised an
ineffective assistance claim in his original 2255 motion. The
allegedly ineffective attorney who authored that motion
essentially admitted that his own representation was the reason
that Hodge did not file a timely appeal. The language he used
comes as close to a mea culpa as one could realistically expect.


                               20
       Having determined that Hodge’s ineffective assistance

claim relates back to his timely filed 2255 motion, we next

address whether his counsel’s performance constituted cause for

the   procedural   default   of    his   claims   concerning   the

government’s alleged breaches of the plea agreement.

       B.     Procedural Default

       Because collateral review under § 2255 is not a substitute

for direct review, a movant ordinarily may only raise claims in

a 2255 motion that he raised on direct review. Bousley v. United

States, 523 U.S. 614, 621 (1998). Put differently, a movant has

procedurally defaulted all claims that he neglected to raise on

direct appeal. Id. But courts will exempt a movant from that

rule if he can prove either that he is actually innocent of the

crime for which he was convicted, or that there is a valid cause

for the default, as well as prejudice resulting from the default.

Id. at 622. On appeal, Hodge argues, as he did below, that his

                                  21
counsel’s ineffective assistance – in the form of neglecting to

file a direct appeal of his sentence – satisfies the cause and

prejudice exception to procedural default. We agree.9

              1.      Cause

       Ineffective assistance of counsel that rises to the level of

a Sixth Amendment violation constitutes cause for a procedural

default. McCleskey v. Zant, 499 U.S. 467, 494 (1991); Wise v.

Fulcomer, 958 F.2d 30, 34 n.9 (3d Cir. 1992). The question

before us, then, is whether it was constitutionally ineffective for

Hodge’s counsel not to file an appeal of Hodge’s life sentence.

       In Strickland v. Washington, 466 U.S. 668 (1984), the



   9
     We recognize that the District Court never addressed the
merits of Hodge’s ineffective assistance claim, holding instead
that it did not relate back to his original 2255 motion. However,
“[b]ecause the record has been sufficiently developed for us to
resolve this legal issue, we need not remand to the District Court
to consider it in the first instance.” In re Ben Franklin Hotel
Assocs., 186 F.3d 301, 306 (3d Cir. 1999).

                                22
Supreme Court held that every criminal defendant has a Sixth

Amendment right to “reasonably effective [legal] assistance.”

Id. at 687.    Pursuant to Strickland’s now-familiar test, an

attorney renders ineffective assistance when his performance

“f[alls] below an objective standard of reasonableness,” given

the particular circumstances of the case at hand. Id. at 688. In

Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Court applied

Strickland to an attorney’s failure to file a notice of appeal. At

the outset of its analysis, the Court recognized that a lawyer who

disregards his client’s explicit instructions to appeal renders

ineffective assistance. Id. at 477. However, it rejected, as

inconsistent with Strickland, the Ninth Circuit’s rule that it was

per se unreasonable for an attorney not to file a notice of appeal

on behalf of a client unless the client had told the attorney not to

appeal. Id. at 478. Instead, under Flores-Ortega, reviewing

courts must conduct a “circumstance-specific reasonableness

                                23
inquiry” regarding counsel’s failure to file a notice of appeal,

whenever the client did not express a desire to appeal. Id.

         That inquiry begins with the issue of attorney-client

consultation. Id. “If counsel has consulted with the defendant

[about his right to appeal], the question of deficient performance

is easily answered: Counsel performs in a professionally

unreasonable manner only by failing to follow the defendant’s

express instructions with respect to an appeal.” Id. But if

counsel has not consulted with the defendant and has not filed

a notice of appeal, he has performed below the constitutional

threshold “when there is reason to think either (1) that a rational

defendant would want to appeal ..., or (2) that this particular

defendant reasonably demonstrated to counsel that he was

interested in appealing.” Id. at 480.

       Of course, an attorney may not speak cursorily with a

client about an appeal and call it a “consultation.” Indeed, the

                                24
Flores-Ortega opinion defines “consulting” as “advising the

defendant about the advantages and disadvantages of taking an

appeal, and making a reasonable effort to discover the

defendant’s wishes.” Id. at 478. It is, moreover, clear from

Strickland that the advice an attorney dispenses during

consultation   must    meet    an   “objective    standard    of

reasonableness.”

        In the case at hand, Hodge contends that he told his

counsel to file an appeal, and his counsel failed to do so.

According to the government, however, the record contains

insufficient evidence to establish what, if anything, Hodge told

his counsel regarding an appeal before the filing period expired.

We need not resolve who has the better of this debate.10 Nobody


   10
     If we did think it necessary to answer that question, we
would ask the District Court to do so in the first instance.
However, we note that the record is replete with evidence
corroborating Hodge’s claim that he told his counsel to appeal

                               25
contends that Hodge told his lawyer that he did not want to

appeal. Thus, on this record, the question boils down to whether

Hodge expressly said that he wanted to appeal, whether he gave

his lawyer vague instructions, or whether he said nothing at all.

The government does not contend – and it seems implausible –

that he would say nothing, so we are left with the first and

second alternatives.     If counsel failed to follow Hodge’s




but that his instruction was ignored, as counsel chose instead to
file several motions. In the letter that Hodge sent to his lawyer
in March 2003, Hodge expressed confusion as to the state of his
appeal. In no uncertain terms, he asked counsel to “[d]o
whatever needs to be done so that I can have a chance to
‘appeal’ the ... sentence I received ... while under the counsel of
you and your associates.” (App. at 195.) Furthermore, the papers
that counsel filed pursuant to the Rule 35 Motion betray his
misunderstanding that the period for direct appeal could be
tolled by motions practice. Most glaringly, the “Information
Motion” suggests that the Rule 35 motion is “appropriate for an
Order of the District Court before Defendant’s timeliness for
filing an appeal, if necessary, can be ascertained. Otherwise the
Defendant is held in the procedural [l]imbo [in which] he now
finds himself.” (App. at 193.)

                                26
instructions, his assistance was clearly ineffective under Flores-

Ortega.   If, on the other hand, counsel was unsure about

Hodge’s wishes, the consultation and subsequent service he

provided was still deficient under Flores-Ortega, as well as in

violation of Strickland’s reasonableness standard, because any

doubt under these circumstances should have been resolved in

favor of appeal. Given the force of Hodge’s argument that the

government failed to abide by the terms of its plea agreement,

we think it beyond cavil that any rational defendant in his

position would want to appeal. Counsel himself recognized that

and failed to file an appeal only because he mistakenly believed

his motions practice had put off the pertinent deadline. In short,

competent counsel would have timely appealed.

       We are mindful that “the distorting effects of hindsight”

necessitate   a   highly   deferential   review    of   counsel’s

performance. Strickland, 466 U.S. at 689. And we agree that

                               27
“[t]here are countless ways to provide effective assistance in any

given case.” Id. However, we cannot envision a scenario, aside

from following a client’s thoroughly informed and perfectly

explicit direction, where it would be reasonable for an attorney

not to appeal the life sentence of a client with a nonfrivolous

argument11 as to why the sentence is unlawful.

              2.      Prejudice

       We turn next to the question of prejudice. To establish

prejudice, “a defendant must demonstrate that there is a

reasonable probability that, but for counsel’s [ineffective

assistance], he would have timely appealed.” Flores-Ortega,



  11
    The plausibility of one of Hodge’s arguments for vacatur of
his sentence is demonstrated by the fact that Devin, who
received an identical plea agreement in a joint plea arrangement,
and then, at a joint sentencing hearing, received an identical
sentence, successfully argued that the government had breached
the plea agreement by implicitly requesting a life sentence.
Hodge, 412 F.3d at 487.

                               28
528 U.S. at 484. In making that determination, the reviewing

court considers the totality of the circumstances surrounding the

representation.    “Nonetheless, evidence that there were

nonfrivolous grounds for appeal ... will often be highly

relevant.” Id. at 485.

       As indicated above, we think the prejudice here is

manifest.    Hodge had nonfrivolous arguments that the

government had breached its plea agreement with him. Given

the parallels between his case and Devin’s, we agree that “[i]t is

difficult to imagine that one brother would take an appeal and

the other would not.”     (Hodge Reply Br. at 12.) Hodge’s

prejudice claim finds additional support in the fruitless motions

practice conducted by his lawyer. Those motions were aimed at

having his sentence “corrected,” which implies that there was

some belief by his counsel that there had been an error.

Furthermore, Hodge’s March 2003 letter to counsel indicates

                               29
that Hodge had been under the impression that his appeal was in

process. When he discovered it was not, he asked his attorney

to “[d]o whatever needs to be done so that I can have a chance

to ‘appeal’ the life ... sentence I received on March 6, 2002.”

(App. at 195.) Thereafter, without the assistance of counsel, he

asked the District Court to allow him to file a notice of appeal

out of time.   All things considered, we find it reasonably

probable, if not obvious, that Hodge would have appealed his

sentence if he had enjoyed effective representation.

       The government seems to argue that, even if his

counsel’s assistance was constitutionally ineffective, it did not

prejudice Hodge because the District Court told him at

sentencing that “if he did not file a notice of appeal with or

without counsel, he would lose that right.” (Gov’t Brief at 15

(emphasis added).) This contention conflates the sentencing

court’s obligation, under Fed. R. Crim. P. 32(j), to inform the

                               30
defendant of his right to appeal and an attorney’s responsibility,

under the Sixth Amendment, to provide effective assistance in

the initiation of his client’s appeal. By that untenable logic, the

government would absolve defense counsel of a constitutionally

imposed duty merely because the District Court paraphrased a

rule of criminal procedure. Needless to say, the responsibilities

of counsel are not so lightly cast aside. Hodge was prejudiced

by his counsel’s failure to initiate the appeals process, regardless

of the District Court’s sentencing colloquy.

IV.    Remedy

       We have determined that Hodge’s ineffective assistance

claim relates back to his timely filed 2255 motion, that his

counsel’s deficient performance constituted cause for his failure

to file a direct appeal, and that he was prejudiced by that failure.

Now we must prescribe an appropriate remedy.



                                31
       In United States v. Shedrick, 493 F.3d 292 (3d Cir. 2007),

a defendant who had pled guilty to being a felon in possession

of a firearm appealed the district court’s denial of his 2255

motion. As does Hodge, Shedrick argued that his counsel had

been ineffective in failing to file a direct appeal, which, in his

case, involved a sentencing enhancement that the Court had

applied under the United States Sentencing Guidelines. Id. at

300-01. After holding that counsel’s assistance was ineffective

under Flores-Ortega because Shedrick had clearly indicated that

he wanted to appeal the enhancement, we decided to remand the

case and instruct the district court to re-enter Shedrick’s initial

sentence. Id. at 302-03. Such a disposition “put Shedrick in the

same position he would have been in if he had had effective

assistance of counsel.” Id. at 303.

       Today, we grant Hodge the same remedy. We will vacate

his   sentence and remand the case for the re-entry of that

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sentence so that he has the opportunity to file a direct appeal.12

V.        Conclusion

          For the foregoing reasons, the District Court erred in

declining to permit Hodge’s ineffective assistance claim to

relate back to his original 2255 motion, and Hodge has

demonstrated that his counsel was ineffective in failing to file a

direct appeal. Therefore, we will reverse the District Court’s

denial of Hodge’s 2255 motion, vacate his sentence, and remand

the case for re-entry of that sentence, so that Hodge has a second

chance to seek direct review.13




     12
    It might reasonably be asked whether directing re-entry of
Hodge’s original sentence makes sense, since we have already
found reversible error in his brother’s closely related case. 412
F.3d 479. We cannot assume, however, that the cases are
identical, and thus we think it best to reset the clock for Hodge’s
appeal, so that his case can be dealt with on its own merits.
 13
   The Court acknowledges with appreciation the excellent pro
bono service rendered by counsel for Hodge on this appeal.

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