The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
MEMORANDUM OPINION AND ORDER
Petitioner John Williams moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. Petitioner claims that appellate counsel was deficient in advising him to voluntarily withdraw his appeal notwithstanding the recently decided case Blakely v. Washington, 124 S.Ct. 2531 (2004), and the subsequently decided case of United States v. Booker, 125 S.Ct. 738, 742 (2005), which found the Federal Sentencing Guidelines to be "advisory" and not binding. Because counsel's advice falls within the "wide range of professionally competent assistance," Strickland v. Washington, 466 U.S. 668, 690 (1984), petitioner's motion must be denied.
On March 5, 2002, an undercover officer with the Washington, D.C. Metropolitan Police Department (MPD) Major Narcotics Branch purchased cocaine from petitioner as part of an undercover operation in Northeast Washington. A search of the vehicle that petitioner was seen entering yielded several bags containing 46.97 net grams of "crack" cocaine. On March 20, 2003, a two-count superceding indictment was filed, charging unlawful distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and unlawful possession with intent to distribute 5 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).
On March 31, 2003, petitioner pled guilty to one count of the indictment pursuant to a written plea agreement. Petitioner acknowledged that he understood that he was subject to a minimum term of five years and a maximum term of forty years imprisonment, a fine not to exceed $2,000,000, and a term of supervised release of not less than four years. The petitioner agreed that pursuant to § 1B1.3 of the Federal Sentencing Guidelines, he was responsible for distributing or possessing with the intent to distribute at least thirty-five grams of cocaine base, but less than fifty grams of cocaine base. As part of the plea agreement, the government agreed to dismiss the second count.*fn1
At sentencing, the Court applied the Guidelines, which were considered binding at that time. It sentenced petitioner to a term of 130 months imprisonment to be followed by four years of supervised release.*fn2
Petitioner filed a timely appeal of his sentence on June 3, 2004. An Assistant Federal Public Defender was appointed to represent petitioner on appeal. According to an affidavit submitted by appellate counsel, she reviewed all of the transcript and record materials in petitioner's case and advised petitioner that he did not have any non-frivolous issues on which to appeal. (Def.'s Mot. Ex. A.) Petitioner reports that he expressed his strong desire to pursue an appeal of his sentence, but that counsel convinced him that it was a "waste of time." (Def.'s Mot. at i.)
On June 10, 2004, petitioner, acting on the advice of his counsel, executed an affidavit stating that he wished to voluntarily withdraw his appeal. (Gov't Opp'n Ex. A.) Counsel filed the motion to withdraw petitioner's appeal on June 28, 2004. (Id.) The motion to withdraw the appeal was granted by the Circuit the same day. (Id. Ex. B.)
On June 24, 2004, four days before counsel filed petitioner's motion to withdraw his appeal, the Supreme Court issued its decision in Blakely,whereby the Court struck down a Washington state statute allowing a judge to sentence a defendant above the statutory maximum upon finding "substantial and compelling reasons justifying" departure. 124 S.Ct. at 2535. Blakely by its plain terms did not reach the question of whether its holding affected the Federal Guidelines. However, seven months later in Booker, the Supreme Court, applying the reasoning of Blakely to the Federal Sentencing Guidelines, held that they are merely advisory in nature and that judges have discretion "to tailor the sentence in light of other statutory concerns." 125 S.Ct. at 755 (citing 18 U.S.C. § 3553(a)).
Petitioner now brings this 28 U.S.C. § 2255 motion wherein he claims that his appellate counsel was constitutionally ineffective for convincing him to withdraw his appeal. Petitioner asserts that he only signed an affidavit stating that he wished to voluntarily withdraw his appeal because counsel convinced him that an appeal was pointless. Further, petitioner argues that counsel's advice constituted ineffective assistance because counsel failed to recognize that the recently decided Blakely, as well as the subsequently decided Booker case, could have provided meritorious grounds for appeal.
In order to prevail on an ineffective assistance of counsel claim, a petitioner must make a two-part showing. "First, the [petitioner] must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment. Second, the [petitioner] must show that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687.
In the instant context, courts have held that the "voluntariness of [a waiver of the right to appeal] depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." See Griffin v. United States,109 F.3d 1217, 1220 n.4 (7th Cir. 1997) (quoting Hill v. Lockhart, 474 U.S. 52, 56 (1985)). If petitioner can show that he failed to prosecute an appeal based on erroneous advice, petitioner need not make a showing of prejudice. See, e.g., id. (finding prejudice where petitioner relied on counsel's erroneous advice that he should not pursue an appeal). Courts have held that an attorney's failure to file an appeal when instructed to do so by his client is presumptively prejudicial, regardless of whether the appeal may have had a reasonable probability of success. See, e.g., id. at 1219-20; Castellanos v. United States,F.3d 1217 (7th Cir. 1994); United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993); Abels v. Kaiser,913 F.2d 821 (10th Cir. 1990); Estes v. United States,883 F.2d 645 (8th Cir. 1989). Thus, in such cases, counsel's advice to waive an appeal is prejudicial because it effectively denies the opportunity to have representation on appeal.
Applying this standard to this case, the Court concludes that petitioner has failed to prove that counsel's advice to waive the appeal constituted deficient performance. Even if the Court accepts as true petitioner's assertion that the only reason that he waived his appeal was because of the advice of his counsel, petitioner cannot succeed because he cannot prove that his counsel's advice to dismiss his appeal, notwithstanding Blakely and the likelihood of a subsequent case ...