Randy Shultz v. United States ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3158
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Randy Allan Shultz, *
*
Appellant, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
United States of America, * [UNPUBLISHED]
*
Appellee. *
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Submitted: November 19, 1999
Filed: December 15, 1999
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Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Randy Allan Shultz filed a 28 U.S.C. § 2255 motion claiming he received
ineffective assistance of counsel because his trial attorney failed to file a direct appeal.
The district court denied Shultz's motion without an evidentiary hearing and Shultz
appeals only the issue of whether he should have received a hearing. We affirm.
Shultz contends he should have received an evidentiary hearing because the
parties dispute whether Shultz told his attorney to file an appeal. See Holloway v.
United States, 960 F.2d 1348, 1357 (8th Cir. 1992) (failure to file appeal as requested
by client is ineffective assistance of counsel for purposes of § 2255); Estes v. United
States, 883 F.2d 645, 648 (8th Cir. 1989) (same). We disagree. Shultz was entitled
to a hearing only if "the motion, files, and records of the case were inconclusive
regarding whether [Shultz] instructed his counsel to file an appeal." Holloway, 960
F.2d at 1357; accord Estes, 883 F.2d at 649. In filing his § 2255 motion, Shultz
ignored the motion instructions to state the "ground[s] on which [Shultz] claim[ed he
was] being held unlawfully" and "the facts supporting each ground." Instead of
complying with these clearly stated instructions and satisfying the requirement that a
"habeas application must rest on a foundation of factual allegations presented under
oath," United States v. LaBonte, 70 F.3d 1396, 1413 (1st Cir. 1995), rev'd on other
grounds, 520 U.S. 751 (1997), Shultz offered the self-serving argument in an unsworn
pro se brief that he was denied effective assistance when his attorney failed to file a
requested appeal from the Guideline sentence imposed by the district court. Contrary
to Shultz's view, "[f]acts alluded to in an unsworn memorandum will not suffice." Id.;
Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990) (court must be able to
determine from face of petition alone whether petition merits further review). Having
satisfied ourselves that Shultz's motion was deficient on its face because the necessary
fact that Shultz instructed his attorney to take an appeal was not verified, we conclude
the district court did not abuse its discretion in denying Shultz's motion without an
evidentiary hearing. See Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995)
(standard of review).
We affirm the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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