                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-6807


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LONNIE EDWARD MALONE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.    James P. Jones, District
Judge. (1:08-cv-80114-JPJ-MFU; 1:07-cr-00037-JPJ-MFU-1)


Submitted:   July 29, 2011                 Decided:   August 16, 2011


Before GREGORY, SHEDD, and KEENAN, Circuit Judges.


Reversed by unpublished per curiam opinion.


Lonnie Edward Malone, Appellant Pro Se. Jennifer R. Bockhorst,
Zachary T. Lee, Steven Randall Ramseyer, Assistant United States
Attorneys, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Lonnie Edward Malone appeals from the denial of his 28

U.S.C.A. § 2255 (West Supp. 2011) motion.                               We previously granted

a certificate of appealability (“COA”) on the issue of whether

Malone      received    ineffective         assistance                 of     counsel      when    his

attorney allegedly failed to properly consult with him regarding

an appeal.      We now reverse the district court’s ruling.

              After his sentencing, Malone expressed an interest in

appealing,     but     his    attorney      never            spoke       with      him    personally

about an appeal.         Instead, the attorney spoke with Malone’s son

and   daughter-in-law         and       wrote       Malone         a    letter      that    was    not

received     until     after    the      appeal          period         had      expired.         In   a

meeting with Malone’s son and in his letter, the attorney stated

he would not file a notice of appeal and that Malone would

likely receive a longer sentence if he appealed.

              In reviewing the denial of a § 2255 motion, we review

the district court’s legal conclusions de novo and its factual

findings for clear error.                Mixed questions of law and fact, such

as    the     issue      of     whether             a        lawyer’s            performance       was

constitutionally        adequate,          are          reviewed            de    novo.      United

States v. Roane, 378 F.3d 382, 395 (4th Cir. 2004).

              In    order     to    succeed             on     a       claim      of     ineffective

assistance     of    counsel,       a    defendant            must       show:      (1)    that    his

counsel’s      performance         fell     below            an    objective           standard        of

                                                2
reasonableness; and (2) that counsel’s deficient performance was

prejudicial.         Strickland       v.     Washington,               466   U.S.      668,    687

(1984).        In    United       States         v.     Peak,          992     F.2d     39,     41

(4th Cir. 1993),      we       held   that       the    Sixth          Amendment       obligates

counsel to file an appeal when his client requests him to do so.

Failure   to   note       an    appeal     upon        timely          request    constitutes

ineffective assistance of counsel, regardless of the likelihood

of success on the merits.                Id. at 42.               A waiver of appellate

rights in a plea agreement does not absolve counsel of this

duty.       United    States v.       Poindexter,                492    F.3d     263,     271-73

(4th Cir. 2007).          Moreover,        even        if    the       defendant       fails    to

clearly instruct counsel to note an appeal, counsel must still

consult     with    the    defendant       about            an    appeal       under     certain

circumstances.       Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000).

            Specifically, counsel is required to consult with a

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

rational defendant would want to appeal (for example, because

there are nonfrivolous grounds for appeal), or (2) that this

particular defendant reasonably demonstrated to counsel that he

was interested in appealing.”                Id. at 480.                Consulting entails

“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; see also In re Sealed

Case, 527 F.3d 174, 175-76 (D.C. Cir. 2008) (noting that, after

                                             3
attorney advised client regarding advantages and disadvantages

of appealing, attorney must actively attempt to “discover the

defendant’s wishes” within the appeal period).

           In addition to showing that counsel’s performance in

failing   to     consult       was    deficient,        the       prisoner       must    also

establish he was prejudiced by this failure.                           Flores-Ortega, 528

U.S. at 484.       To demonstrate prejudice, the prisoner must show

“a   reasonable    probability         that,      but      for    counsel’s       deficient

failure   to    consult      with    him     about    an    appeal,       he    would    have

timely appealed.”        Id.

           In     his    opening      brief,      Malone         did    not    contest    the

district court’s conclusion that he never directed his attorney

to file an appeal; he contended only that his attorney did not

adequately consult with him regarding an appeal as required by

Flores-Ortega.          In   his     reply    brief,       Malone       claims    that    his

statements      after    sentencing        were      sufficient          to    require    his

attorney to file a notice of appeal.                          However, because this

claim is raised for the first time in his reply brief, Malone

has waived consideration.             See Yousefi v. INS, 260 F.3d 318, 326

(4th Cir. 2001).         In addition, our COA was narrowly tailored to

the question of adequate consultation, and Malone has not moved

to expand the certificate.

           The next question is whether counsel was required to

consult with Malone, that is, whether Malone’s attorney was on

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notice that Malone would likely want to appeal.                               While it is

debatable whether a rational defendant would want to pursue an

appeal given the facts of this case, counsel was still required

to consult with Malone if Malone “reasonably demonstrated to

counsel that he was interested in appealing.”                               Flores-Ortega,

528   U.S.   at     480.         Malone      told    his    attorney       directly      after

sentencing that he wanted to appeal.                        In addition, Malone’s son

and   daughter-in-law            both       spoke    with    counsel       about    Malone’s

desire to appeal.           We conclude, as the district court did, that

these    requests       adequately           demonstrated      Malone’s      interest       in

appealing and triggered counsel’s duty to properly consult with

him regarding an appeal.

             Turning        to        the     question        of     whether       counsel’s

consultation      was      adequate,         the    district       court   concluded      that

counsel’s discussions with Malone’s son and daughter-in-law and

his   drafting      a    letter       that     was    not     received      prior    to    the

expiration of the time to appeal satisfied his duty to consult.

We determine that the district court’s holding was in error as a

matter of law.           First, counsel’s advice, even if received by

Malone, did not adequately inform Malone of the advantages and

disadvantages of a plea.                    Counsel incorrectly advised Malone’s

family    members       that      filing       an    appeal    could       result    in    the

Government     seeking           an     enhanced      sentence        by    removing       his

acceptance     of       responsibility             adjustment.         While       the    plea

                                                5
agreement intimated that this was a possibility, there is no

procedure by which this could be completed, and the district

court concurred that this advice was incorrect.

              Nonetheless,       the   district           court   concluded       that,

because an appeal might have resulted in an increased sentence,

counsel’s      advice   was      sufficient.              Pursuant    to    the    plea

agreement, following the filing of a notice of appeal by Malone,

the Government would have been free to bring additional charges

and recharge dismissed counts.                Such a course of conduct might

indeed have resulted in an increased sentence, but it would be

only a risk, not a probability. *                  Moreover, Malone’s waiver did

not waive the right to bring any and all appeals; an appeal

waiver   cannot     waive    certain   fundamental          claims.        See    United

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).                       Thus, the

language in the plea agreement regarding sanctions for the mere

filing   of    a   notice   of   appeal       on    any   grounds    whatsoever     was

likely unenforceable, and counsel did not recognize this.                             As

the consequences for filing a notice of appeal in this case were

legally complex, counsel’s assertion that Malone likely faced a

     *
       First, it is unknown whether the Government would embark
on another prosecution of Malone given the time and expense
involved. Second, Malone may or may not have been convicted of
the additional charges. Third, any additional sentence may have
been run concurrently to his current sentence, given that the
dismissed counts were taken into account in determining Malone’s
initial offense level.



                                          6
longer sentence if he filed a notice of appeal, even if received

by     Malone,      did     not        adequately      advise       Malone        of   all   the

circumstances surrounding a potential appeal.

               In addition, counsel violated his responsibilities by

stating in his untimely letter and in discussion with Malone’s

son    that    he   would     not       file    a    notice    of    appeal       on   Malone’s

behalf.        Counsel      refused        to    represent      Malone       on    appeal     and

informed him that he needed to secure other counsel to file an

appeal for him.           An attorney is not at liberty to disregard the

appellate wishes of his client.                       Poindexter, 492 F.3d at 269.

An attorney is obligated to file a requested appeal even if the

attorney believes the appeal is meritless or even harmful to the

client’s interests.           Peak, 992 F.2d at 41; Poindexter, 492 F.3d

at 273.       Counsel’s statement that he would not file a notice of

appeal rendered the remainder of his consultation suspect.                                   That

is, Malone would not likely make an explicit request for an

appeal given his attorney’s statement that he would not file

one.

               Further, even if counsel’s statements and advice were

somehow       sufficient,         he    made    no    effort    to    determine         whether

Malone actually received his advice or whether Malone had made a

decision.           Given    Malone’s           repeated      inquiries       regarding        an

appeal,    counsel’s        failure        to    ascertain      Malone’s      decision        was

unreasonable.         Thus, we conclude that Malone’s attorney failed

                                                 7
to     provide    proper     consulation          in     that    he    incorrectly      and

incompletely        advised        Malone    regarding          the    advantages       and

disadvantages of a plea and then failed to determine whether

Malone wanted to appeal.

              Regarding      the     prejudice         prong,    the    district      court

concluded that, had Malone wished to appeal, he could have done

so on his own.            However, counsel never informed Malone of this

option and instead incorrectly informed him that he needed to

find    another     attorney.        Moreover,         counsel    provided      incorrect

information         to    Malone’s        family       members,       which     may    have

discouraged Malone from filing an appeal.                       It is undisputed that

Malone expressed an interest in appealing to his attorney, that

his daughter-in-law also inquired about an appeal, that Malone

sent    his   son    to    find    out    about     an    appeal,      and    that    Malone

attempted to set up a meeting to discuss his appeal.

              While it is true that the court stated at sentencing

that the clerk would prepare and file a notice of appeal for

Malone, if so requested, the court did not ensure that Malone

heard or understood this remark.                   Moreover, counsel’s statements

that Malone would have to find another attorney to appeal were

made after the court’s statements and may have confused Malone.

In any event, immediately following sentencing, Malone expressed

a clear, undisputed interest in appealing.                        The district court

implicitly       concluded        that,     subsequently,         Malone       must    have

                                             8
changed his mind or he would have filed a pro se notice of

appeal.        However, the district court ignored that, after his

expressed desire to appeal, Malone received incorrect advice and

instructions from his attorney.                 Thus, even if Malone did change

his mind, it does not undermine his showing of prejudice.                               We

hold that Malone has made a sufficient showing that, had his

attorney    properly      consulted      with     him,    he   would   have     filed   a

timely notice of appeal.           See Frazer v. South Carolina, 430 F.3d

696, 712 (4th Cir. 2005) (finding that Frazer’s “unwavering and

ongoing” interest in an appeal, coupled with his “tenacity in

pursuing       habeas   relief,”     adequately          satisfied     the    prejudice

prong).

               Accordingly, we reverse the district court’s denial of

Malone’s § 2255 motion, vacate his sentence, and remand the case

for reentry of that sentence, so that Malone may have a second

chance    to    seek    direct    review.        We   deny     Malone’s      motion   for

judicial notice.          We dispense with oral argument because the

facts    and    legal    contentions      are     adequately     presented      in    the

materials      before    the     court   and     argument      would    not    aid    the

decisional process.

                                                                               REVERSED




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