Submitted October 9, 2014
Appeal from United States District Court for the District of Nebraska - Omaha.
Brad Lamont Williams, Plaintiff - Appellee: Reggie Paul Koch, KOCH LAW FIRM, Little Rock, AR.
Horace Walters, Individually and as Alexander Chief of Police, Defendant - Appellant: John Lennon Wilkerson, ARKANSAS MUNICIPAL LEAGUE, North Little Rock, AR; Matthew Keith Wren, WREN LAW FIRM, Little Rock, AR.
Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.
WOLLMAN, Circuit Judge.
Federal prisoner Stacey Sellner filed a pro se motion to vacate her conviction pursuant to 28 U.S.C. § 2255, alleging that her attorney had failed to file a notice of appeal as requested. Before the district court ruled on that motion, Sellner filed another § 2255 motion raising a different claim. The district court dismissed Sellner's first § 2255 motion on the merits without an evidentiary hearing and dismissed her second motion as " second or successive." We reverse and remand.
Sellner pleaded guilty to conspiracy to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846. Judgment was entered on March 8, 2013. Her attorney did not file a notice of appeal.
In July 2013, Sellner filed a pro se motion to vacate her sentence pursuant to 28 U.S.C. § 2255, alleging four grounds of ineffective assistance of counsel, including counsel's failure to file a notice of appeal as requested. In a written statement, Sellner alleged that following sentencing she told her attorney that she " wanted him to appeal," but that her attorney responded that there was nothing he could do. Sellner's attorney submitted an affidavit in response, stating that when Sellner asked him about filing an appeal, he told her that he would file an appeal if she insisted, but that Sellner decided to forgo an appeal after counsel explained to Sellner that she had waived her right to appeal.
In November 2013, Sellner filed another pro se § 2255 motion, alleging a violation under Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Thereafter, the district court dismissed the July § 2255 motion on the merits without an evidentiary hearing and the November § 2255 motion as barred by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) as " second or successive." The district court granted a certificate of appealability on both motions.
On appeal, Sellner argues that the district court should have held an evidentiary hearing before ruling on her July 2013 claim of ineffective assistance of counsel for failing to file a notice of appeal and that her November § 2255 motion should have been construed as a motion to amend her July § 2255 motion. At oral argument, the government conceded that the case should be remanded for an evidentiary hearing on the claim of ...