                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1586
                                    ___________

Darnell Crutcher,                        *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the
      v.                                 * Eastern District of Missouri
                                         *
United States of America,                * [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: February 14, 2001

                                   Filed: February 26, 2001
                                    ___________

Before LOKEN and BYE, Circuit Judges, and STROM,1 District Judge.
                               ___________

PER CURIAM.

      The district court granted Darnell Crutcher’s 28 U.S.C. § 2255 motion, and the
government brought this appeal. We reverse and remand for an evidentiary hearing to
determine whether Crutcher requested his lawyer to file a notice of appeal.

      In February 1998, Darnell Crutcher pleaded guilty to one count of conspiring to
defraud the United States, and two counts of transporting stolen vehicles in interstate

      1
        The Honorable Lyle E. Strom, Senior United States District Judge for the
District of Nebraska, sitting by designation.
commerce. The district court sentenced Crutcher to concurrent terms of 56 months in
prison for each of the three counts.

       Though Crutcher didn’t appeal his conviction or sentence, he filed a 28 U.S.C.
§ 2255 motion challenging his sentence in January 1999. Crutcher utilized a check-a-
box form provided by the Clerk of Court in the Eastern District of Missouri. He
specified only one claim in the motion: that the district court improperly imposed a 2-
level sentence increase for obstruction of justice. A different section of Crutcher’s
preprinted § 2255 form required him to explain whether he had directly appealed his
conviction. Crutcher wrote,

      I asked my lawyer to appeal. My lawyer at trial had said not to do it,
      because he was getting me the best “deal” he could get and not to worry.
      He whispered to me and hushed me. I thought he was going to appeal.

      The government opposed Crutcher’s contention that an obstruction of justice
enhancement was improper, noting that Crutcher stipulated to the enhancement in his
plea agreement. The government didn’t respond to Crutcher’s allegation that his
lawyer had failed to heed his request for an appeal.

       The district court summarily rejected Crutcher’s argument against imposing a 2-
level increase for obstruction of justice. But the court construed Crutcher’s remarks
about an appeal as a claim of ineffective assistance of counsel, and the court
determined that Crutcher’s trial lawyer was ineffective for failing to appeal per
Crutcher’s request. The court granted Crutcher’s § 2255 motion and issued a new
judgment so that Crutcher could appeal his conviction. The government now appeals.

       Our prior cases explain that “counsel’s failure to file a notice of appeal when so
instructed by the client constitutes ineffective assistance of counsel for purposes of
section 2255.” Estes v. United States, 883 F.2d 645, 648 (8th Cir. 1989) (citations


                                          -2-
omitted). This doesn’t mean that counsel must always file an appeal. Counsel may
properly decline to file an appeal if the client doesn’t request one after consultation.
Cf. Roe v. Flores-Ortega, 120 S. Ct. 1029, 1035 (2000) (“[A] defendant who explicitly
tells his attorney not to file an appeal plainly cannot later complain . . . that his counsel
performed deficiently.”) (emphasis in original). Whether a defendant asked his lawyer
to file a notice of appeal presents a question of fact, and we have previously held that

       if the motion, files, and records of the case were inconclusive regarding
       whether [defendant] instructed his counsel to file an appeal, we would be
       compelled to “remand this claim to the District Court for a hearing on the
       issue of whether [defendant] requested his counsel to file an appeal.”

Holloway v. United States, 960 F.2d 1348, 1357 (8th Cir. 1992) (quoting Estes, 883
F.2d at 649).

       Crutcher’s filings offer no sworn factual support for his bare assertion that he
requested an appeal. The sole basis for assuming that Crutcher wanted an appeal is his
conclusory statement on the preprinted § 2255 motion form. Although Crutcher filed
an affidavit to accompany his § 2255 motion, that affidavit omits mention of the
circumstances surrounding his desire for an appeal. The critical question, then, is
whether Crutcher specifically asked his lawyer to file a notice of appeal. If Crutcher
did ask for an appeal, his lawyer violated his Sixth Amendment rights by failing to
complete the “ministerial task” of filing a notice of appeal. See Flores-Ortega, 120 S.
Ct. at 1035.

      We hold that the district court erred in granting Crutcher relief in the absence of
evidence that he requested his lawyer to file a notice of appeal. Assuming that
Crutcher’s conclusory allegations sufficed to raise an ineffective assistance of counsel




                                            -3-
claim,2 the district court should have held an evidentiary hearing to get the facts
straight. We therefore reverse the judgment of the district court and remand to permit
the court to hold an evidentiary hearing.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      2
        The government posits that Crutcher’s statements in his form § 2255 motion are
insufficient to raise a claim. We disagree. Reviewing Crutcher’s pro se motion
liberally, it is safe to presume that his statements at least flagged an ineffective
assistance of counsel claim. See Jones v. Jerrison, 20 F.3d 849, 853 (8th Cir. 1994).

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