Sixth Circuit: Remedy for Counsel’s Failure to File a Requested Notice of Appeal Is a Delayed Appeal (Reentered Judgment), Not De Novo Resentencing

1. Introduction

This appeal arises from a familiar post-conviction problem: a defendant asks counsel to file a notice of appeal, counsel fails to do so, and the appeal deadline expires. Joshua Saunders pleaded guilty to receiving and distributing child pornography and sexually exploiting a minor and received a lengthy within-Guidelines sentence. After judgment, Saunders produced evidence (including a letter to counsel and corroboration from his mother) that he had instructed his attorney to appeal. The district court granted partial relief under 28 U.S.C. § 2255 for ineffective assistance on that narrow ground, vacated the original judgment, and reissued the same judgment so Saunders could file a timely notice of appeal.

The key issue on this revived appeal was remedial scope: whether the district court was required to conduct a full resentencing hearing—especially because Saunders asserted he had new psychological information—rather than simply reentering judgment to restore the lost appeal.

2. Summary of the Opinion

The Sixth Circuit (Thapar, J.) held that the district court did not abuse its discretion by providing the standard remedy for counsel’s failure to file a requested appeal: vacating and reentering the same judgment to permit a delayed appeal. The court rejected Saunders’s claim that new mitigation evidence required “de novo resentencing,” explaining that the constitutional injury from the missed notice of appeal is the loss of the appellate opportunity, not a defect in the conviction or sentence itself.

The court also noted that to the extent Saunders was attempting to mount a direct challenge to the reasonableness of his within-Guidelines sentence, his plea agreement’s appellate waiver foreclosed that claim. The opinion emphasized that Saunders may still pursue ineffective-assistance claims later in collateral proceedings.

3. Analysis

3.1 Precedents Cited

The panel grounded its decision in a line of Supreme Court and Sixth Circuit authority defining both (a) the ineffectiveness rule for a missed, requested appeal and (b) the proper remedy.

• Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)
  The district court relied on this case for the core proposition that counsel renders constitutionally deficient performance by failing to file a notice of appeal when asked. Flores-Ortega frames the harm as the forfeiture of an appellate proceeding. That framing matters here because it directly informs the remedy: restoring the appeal opportunity, rather than revisiting the merits of the sentence.
• Campbell v. United States, 686 F.3d 353, 360 (6th Cir. 2012)
  The Sixth Circuit cited Campbell for the remedial statement that when counsel fails to file a requested appeal, the defendant is “entitle[d] . . . to relief in the form of a delayed appeal.” Campbell thus supplies the controlling Sixth Circuit articulation of the remedy: a delayed appeal is the relief, not a resentencing.
• Rosinski v. United States, 459 F.2d 59, 59 (6th Cir. 1972) (per curiam)
  Rosinski is cited for the procedural mechanism: the court may reissue (reenter) judgment to restart the time to file a notice of appeal. This precedent supports the district court’s specific choice—vacate and reenter the same judgment—rather than conducting new sentencing proceedings.
• Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998)
  Ludwig reinforces that the appropriate response to counsel’s failure to perfect an appeal is to restore the appeal, not to provide a different remedy untethered to the right that was violated. The panel used Ludwig to reject Saunders’s attempt to convert an appeal-restoration remedy into a resentencing entitlement.
• Massaro v. United States, 538 U.S. 500, 504-05 (2003)
  Massaro is cited to clarify procedural sequencing: ineffective-assistance claims are generally better suited to collateral review. Here, the court used Massaro to explain that although Saunders’s plea waiver blocks direct sentencing challenges, he can later pursue ineffective-assistance theories in the district court.

3.2 Legal Reasoning

The opinion’s reasoning is primarily remedial and jurisdictional/contractual (waiver-based), not a re-evaluation of sentencing factors. It proceeds in three steps:

1. Identify the constitutional wrong and its limited scope.
   The court treated the established wrong as counsel’s failure to file a notice of appeal “when asked.” Critically, the panel characterized that wrong as one that “doesn't affect the accuracy or integrity” of the conviction or sentence; it “costs him only the opportunity to appeal.” That characterization makes resentencing conceptually mismatched: resentencing addresses a sentencing error, whereas the proven error was a forfeited appellate process.
2. Match the remedy to the wrong.
   Under 28 U.S.C. § 2255(a), the district court may “vacate” the sentence. The Sixth Circuit read that authority, as implemented in Campbell and Rosinski, to permit vacatur and immediate reentry of the same judgment solely to restart appellate deadlines. The panel emphasized that this is the standard, sufficient remedy: “Giving Saunders a second chance to appeal rectifies that harm.”
3. Enforce the plea agreement’s appellate waiver.
   Saunders attempted to argue that the sentencing judge failed to consider certain recidivism-related evidence. The panel treated this as a direct sentencing challenge—exactly what Saunders waived for any within-Guidelines sentence, except for ineffective assistance or prosecutorial misconduct. Thus, even if Saunders wanted to litigate substantive sentencing reasonableness on direct appeal, the waiver barred it.

3.3 Impact

Although labeled “NOT RECOMMENDED FOR PUBLICATION,” the opinion reflects and reinforces a stable Sixth Circuit remedial practice with three practical consequences:

• Limits “remedy creep” in § 2255 appeal-restoration cases. Defendants cannot leverage a Flores-Ortega violation into a resentencing forum merely by presenting new mitigation material after judgment.
• Preserves finality while restoring process. Reentering judgment (rather than resentencing) cures the process deprivation without reopening factual and discretionary sentencing determinations.
• Strengthens the functional interplay between appeal waivers and § 2255 sequencing. Even after an appeal is restored, appellate waivers continue to constrain what can be argued on direct appeal, pushing claims like mitigation-investigation failures toward ineffective-assistance litigation in collateral proceedings.

4. Complex Concepts Simplified

• “Delayed appeal” (appeal reinstatement): A court-created fix when a defendant lost the right to appeal because counsel failed to file a notice of appeal on time. The court reenters the judgment so the appeal deadline starts over.
• “Vacate and reissue the judgment”: The district court cancels the original judgment for timing purposes and immediately enters an identical new judgment. This does not change the sentence; it resets the clock for filing a notice of appeal.
• “De novo resentencing”: A full new sentencing proceeding as if the original sentencing never occurred (new hearing, updated record, renewed arguments). The Sixth Circuit held this is not required when the only established error is loss of the appeal.
• Appellate waiver in a plea agreement: A contractual promise by the defendant not to appeal (with defined exceptions). Here, it barred direct challenges to a within-Guidelines sentence, leaving ineffective-assistance claims as the main remaining path.
• Collateral attack under 28 U.S.C. § 2255: A post-conviction proceeding to challenge a federal conviction/sentence on constitutional or other serious grounds, often used for ineffective-assistance claims that require evidence outside the trial/sentencing record.
• Certificate of appealability (COA): A screening requirement for appealing adverse § 2255 rulings; the court noted Saunders could pursue remaining ineffective-assistance claims later, after the direct-appeal posture is resolved.

5. Conclusion

The Sixth Circuit affirmed because the district court applied the correct, limited remedy for counsel’s failure to file a requested notice of appeal: vacating and reentering the same judgment to allow a delayed appeal. New mitigation evidence did not transform an appeal-restoration remedy into an entitlement to de novo resentencing. And any attempt to directly contest the within-Guidelines sentence was barred by Saunders’s plea agreement, leaving ineffective-assistance claims for collateral litigation under the framework recognized in Massaro v. United States.