United States v. Gustav W. Skurdal

Gustav W. Skurdal appeals from the denial of his 28 U.S.C. § 2255 (“ § 2255”) motion to vacate, set aside or correct his conviction and sentence. We reverse. We conclude that Mr. Skurdal’s attorney’s failure to file a proper Anders brief in support of his motion to be relieved of his appointment to represent Mr. Skurdal on his direct appeal constituted a denial of effective assistance of counsel under the Fifth Amendment. Accordingly, we hold that Mr. Skurdal has demonstrated cause and prejudice for his failure to seek review of the issues presented in his § 2255 motion in his direct appeal.

I

Mr. Skurdal was arrested in the early morning hours of February 15, 1991, in Billings, Montana, as a result of a Federal Drug Enforcement Agency sting operation. Because Mr. Skurdal is indigent, Curtis L. Bevolden was appointed as his trial counsel. During his arraignment proceedings, Mr. Skurdal requested that the court vacate its order appointing Mr. Be-volden as his counsel and appoint his brother to represent him instead. Mr. Skurdal’s brother is not a member of the bar of any state. The magistrate judge denied the motion.

In an indictment filed with the district court on…