Williams, Tyrone v. United States , 273 F. App'x 552 ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 8, 2008∗
Decided April 14, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 07-2343
Appeal from the United
TYRONE WILLIAMS, States District Court for the
Petitioner-Appellant, Northern District of Illinois,
Eastern Division.
v.
No. 04 C 560
UNITED STATES OF AMERICA, Robert W. Gettleman, Judge.
Respondent-Appellee.
Order
Our initial decision in this case, 215 F.3d 776 (7th Cir. 2000), affirmed Williams’s
conviction but remanded for resentencing within the range of 360 months to life. The
district court chose 360 months, the lowest available. Williams did not appeal.
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 07-2343 Page 2
In this collateral proceeding under 28 U.S.C. §2255, Williams accuses his lawyer
of ineffective assistance for failing to appeal at his request. The district court denied
relief without an evidentiary hearing, ruling that an appeal would have been pointless.
In this court the United States has confessed error, and properly so. The district judge
may well be right that an appeal would have been pointless, but under Anders v.
California, 386 U.S. 264 (1967), the decision whether a given appeal is frivolous is made
by the court of appeals, not the defense lawyer or the district judge. That’s why the
Supreme Court held in Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000), that failure to take
an appeal at a defendant’s timely request is ineffective assistance without regard to the
district judge’s assessment of prejudice (or lack thereof) caused by the omission. See
also Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).
It remains to be determined whether Williams asked his lawyer to file a notice of
appeal. The judgment of the district court is vacated, and the case is remanded for an
evidentiary hearing devoted to that question. If Williams told his lawyer to file a notice
of appeal, then a new judgment must be entered from which an appeal may be filed.