District court must resolve disputed fact of whether defendant instructed attorney to appeal even where appeal rights waived in plea agreement

COLLATERAL REVIEW United States v. Garrett, No. 03-6176, ___ F.3d ___(10th Cir. Apr. 6, 2005)(W.D. Oklahoma). Appeal of district court’s denial of motion to set aside, vacate, or correct sentence under 28 U.S.C. § 2255. HELD: In deciding defendant’s ineffective assistance of counsel claim, district court erred by merely concluding that defense attorney does not render ineffective assistance by failing to file notice of appeal where defendant has waived right to appeal. Instead, district court must resolve factual dispute over whether defendant instructed attorney to appeal because if counsel did not file requested appeal, defendant is entitled to new appeal without showing that appeal likely would have merit. Read the opinion here.