United States v. Tighe

In United States v. Tighe, —- F.4th —-, No. 22-50332 (5th Cir. Jan. 25, 2024), the Fifth Circuit reversed the district court’s denial of a habeas petition and ordered the district court to permit the defendant to file an out-of-time appeal due to ineffective assistance of counsel.

In the district court, Tighe had received consecutive prison sentences totaling 150 months, but his attorney never filed a notice of his desire to appeal that sentence. Later, Tighe filed a motion for leave to file an out-of-time notice of appeal because, he said, his counsel had provided ineffective assistance by failing to perfect his appeal.

In an affidavit, Tighe said that his prior counsel assured him that he would not receive a sentence higher than 120 months and “blew him off” when he requested that she ask the district court to run his sentences concurrently. Tighe also claimed that his lawyer had promised to visit him at the jail after sentencing, but she never came.

In response, Tighe’s prior counsel disputed nearly everything he said. In relevant part, she said that she never heard anything about an appeal from Tighe until almost a year after sentencing, and she said he “got a copy of the appeal paper at the time of the plea[, which told him] about [his] appellate rights.” The district court ultimately denied Tighe’s request for permission to file an out-of-time appeal.

The Fifth Circuit, however, reversed that decision. It relied on Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000), which reasoned that an attorney has not consulted with their client about an appeal unless they have “advis[ed] the defendant about the advantages and disadvantages of taking an appeal, and ma[de]a reasonable effort to discover the defendant’s wishes.”

Here, counsel admitted that she never did that for Tighe, although she excused that failure by saying Tighe never reached out to her from prison to express a desire to appeal. Again citing Flores-Ortega, the Fifth Circuit rejected that argument too, finding that “counsel’s failure to consult with [Tighe] was unreasonable.” The court found that Tighe had “reasonably demonstrated” his interest in appealing by expressing shock at the sentence after previously asking his lawyer to request concurrent sentences.

For those reasons, the Fifth Circuit reversed and remanded with instructions for the district court to grant Tighe an out-of-time appeal.