Failure to file appellate brief is per se prejudicial

Hardaway v. Robinson, No. 08-1156 (6th Cir. Apr. 14, 2011) (published)

This was a pure criminal case, involving an appeal from the denial of a habeas petition. 

The Court reversed the denial on ineffective assistance grounds.  The ineffective assistance was the defense attorney's failure to file an appellate brief, resulting in summary dismissal.  The Court found that this prejudiced the defendant because it rendered the direct appeal "entirely nonexistent."  Prejudice was therefore presumed since there was not adequate substitute for a direct appeal as of right.  Collateral review was not an adequate substitute.

If only the Court would apply this in the context of removal proceedings, where counsel failures to file a timely appeal or brief on appeal.