Third Circuit: evidentiary hearing needed to determine whether defendant was afforded effective assistance of appellate counsel where his lawyer did not challenge the district court’s failure to personally address him at sentencing

Yesterday, in United States v. Scripps, the Third Circuit held that an evidentiary hearing should have been held with respect to a convicted defendant’s motion for relief under 28 U.S.C. § 2255. The defendant claimed that his sentencing judge failed to personally address him during the sentencing proceeding, as required under Rule 32 of the Federal Rules of Criminal Procedure, and that his lawyer’s failure to raise that issue on appeal amounted to ineffective assistance of counsel.

District courts are required to hold evidentiary hearings unless a § 2255 motion “and the files and records of the case conclusively show that the prisoner is entitled to no relief.” United States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005). Moreover, the Scripps panel noted that sentencing courts are required to personally address defendants, “and that no substitute for such a personal address will be permitted.”

In the absence of an evidentiary hearing on the defendant’s § 2255 motion, the Third Circuit determined that it could not determine whether appellate counsel had a strategic reason for failing to raise the Rule 32 issue. Moreover, because “there is a reasonable probability that we would have remanded for resentencing if counsel had raised the Rule 32 error on direct appeal,” the Third Circuit determined that the district court abused its discretion by summarily denying the defendant’s § 2255 motion without conducting an evidentiary hearing.

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