Unwaiving a waived right of appeal. The Second Circuit, in Campusano v. United States has decided the issue of whether a criminal defendant, who instructs his attorney to file a notice of appeal despite a waiver of his right to appeal in his plea agreement, has suffered per se ineffective assistance of counsel if his attorney fails to do so.

Campsano's plea agreement contained a provision that he would not appeal or otherwise challenge his sentence provided the sentence fell within a stipulated range.of 108-135 months. He was sentenced to 108 months. He twice instructed his attorney to file a notice of appeal, but his attorney did not do so. He then moved, pursuant to 28 U.S.C. 2255, to vacate, set aside or correct his sentence on the basis of ineffective assistance of counsel. Campano argued that the failure to file a requested notice of appeal constitutes ineffective assistance and that no independent showing of prejudice was required.

The District Court denied Camuosano's motion, holding that the rule that the failure to file a notice of appeal constitutes per se ineffective assistance unless the defendant asks his attonrey to file an appeal that raises one of the permitted grounds for appeal despite the plea waiver. Campusano appealed.

The Second Cirucit reversed. It noted that while plea waivers were enforceable in most cases, "important constitutionsal rights require some exceptions to the presumptive enforceability of a waiver." These rights are endangered when an attorney fails to file a notice of appeal. The Court remanded the case to the district court for a determination of whether Campusano in fact instructed his attorney to file an appeal. If he did give such an instruction, he is to be allowed a direct appeal.

The decision in this case can be found at the Second Circuit website. The case was decided on March 23, 2006.