Tag Archives: notice of appeal

‘He Should Have Called,’ Lawyer Tells 5th Circuit – Update for January 30, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

‘YOU HAD ONE JOB’, 5TH CIRCUIT TELLS LAWYER

A trial lawyer representing a client post-sentencing can fairly be said to only have one remaining task: To consult with the client about the advantages and disadvantages of appeal and to determine whether the client wants to file appeal papers with the court.

onejob240130Lucas Tighe, represented by Attorney Sharon Diaz, pleaded guilty in 2019 to conspiracy and firearms charges. The court sentenced him to a top-of-the-Guidelines 150 months in prison, a sentence made up of the statutory maximum of 120 months on two counts (run concurrently) and 30 months consecutive for the conspiracy charge. Luke was also charged in state court for organized criminal activity related to the same gun issues as in his federal conviction.

Two months after his federal sentence, Luke got 15 years on his state charges. He wrote to the federal court asking it to run his federal sentences concurrent with the state sentence, claiming that he was misled by counsel and that he never saw his presentence report. The district court construed the letter as a 28 USC § 2255 motion, but when Luke did not respond, the court dismissed it. About 5 months later, Luke sent another letter to the court asking about his appeal. He told the court that he was in state custody, his attorney had told him she was not able to help him anymore, and he never received a copy of the judgment or sentencing paperwork. The district court appointed counsel, who filed a 28 USC § 2255 motion claiming ineffective assistance of counsel because trial counsel failed to perfect an appeal.

Luke said that he had directed Diaz prior to sentencing to ask the judge about running his federal sentence concurrently to any forthcoming state sentence but counsel “blew me off.” Luke complained that Diaz told him that after he was sentenced,  she would visit him at the jail later that day, but she never showed.

The district court denied the § 2255 motion, but last week, the 5th Circuit reversed. “Diaz admitted that she had not advised Luke about the advantages or disadvantages of taking an appeal,” the Circuit said. She “excused her failure to directly ask Tighe before sentencing whether he wanted to appeal by saying, ‘Well, at that point, he hadn’t been sentenced yet, so — I did not ask him at that point if he wanted to appeal’.”

shouldcall240130But after sentencing, she failed to ask Luke whether he wanted to appeal, relying instead on whether he successfully reached out to her from prison. Diaz said that if Luke had contacted her and “expressed his desire to appeal, then she would have advised him of the potential advantages or disadvantages of appealing.”

Not good enough, the 5th ruled: “Counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known.”

Here, the Circuit found a rational defendant in Luke’s situation would have wanted to appeal, and Luke reasonably demonstrated that he was interested in appealing. Luke and Diaz were admittedly both shocked by the court’s stacked 150-month sentence. “Regardless of whether Diaz did or did not tell Tighe that he would not get a stacked sentence, she still expressed shock over it,” the 5th said. “It is reasonable to expect that Tighe would have that same reaction.”

shocked191024Also, Attorney Diaz acknowledged that Luke wanted to ask the district court to run his federal sentence concurrent with his state sentence,” but she failed to do that. “Those are all indications that Tighe would be interested in appealing. Further, Diaz excused her failure to directly ask Tighe whether he wanted to appeal because he had not yet been sentenced. Under that same reasoning, Diaz could not have properly consulted with Tighe about an appeal prior to sentencing when she gave him his notice of right to appeal because she would not yet have known the ‘advantages and disadvantages of taking an appeal’ that she is required to counsel her client on.”

In other words, you can’t fairly tell your client that a sentence should be appealed until you know what the sentence is.

“In the absence of any self-evident reason why Tighe would not have filed a direct appeal,” the 5th said, “and without any regard to the potential merits of such an appeal, we conclude that he has established prejudice…”

United States v. Tighe, Case No. 22-50332, 2024 U.S.App. LEXIS 1758 (5th Cir. January 25, 2024)

– Thomas L. Root

Benefit of the Dout – Update for December 2, 2022

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6TH CIRCUIT CUTS INMATE FILER A BREAK ON CONFUSING PLEADING

cutbreak221201Eighty-three days after his judge denied his 28 U.S.C. § 2255 motion, Joe Reho filed something with the district court. It may have been a motion for an extension of time to apply for a certificate of appealability. It may have been a notice of appeal. No one was quite sure what it was, but everyone was quite sure it was written without the benefit of a dictionary nearby.

The district court decided it must be a notice of appeal and dismissed it as being 23 days late.

Last week, the 6th Circuit remanded the case, concluding that Joe’s motion, which repeatedly asked for an extension of time, “is better construed as a motion for extension of time to file a notice of appeal.”

grammar221201Under Rule 4(b)(4) of the Federal Rules of Appellate Procedure, district court may extend the time to file a notice of appeal based on “excusable neglect or good cause” if an extension is filed within 30 days after the notice of appeal due date. Here, Circuit said, construing Joe’s “filing liberally, we conclude that he moved for an extension of time to file a notice of appeal. While the district court docketed the document as a notice of appeal, Joe’s motion requested, in the opening paragraph, ‘a extention of time to filed a certificate of Appealability… and to proceed inform a peuperis on appeal.”

CantSpell221201“This court construes pro se habeas petitions liberally,” the 6th held, apparently even where spelling and grammar are butchered. “For instance, we regularly construe notices of appeal as applications for a certificate of appealability… We have also construed motions for extension of time as notices of appeal… Repo’s motion appears to ask for an extension to apply for a certificate of appealability rather than for an extension to file a notice of appeal. But his motion is a far cry from the simple notices of appeal that we have refused to construe as motions for extension… Repo’s motion reads as a motion for extension of time to file a notice of appeal and will be treated as such.”

Reho v. United States, Case No 22-3784, 2022 U.S.App. LEXIS 31392 (6th Cir., Nov. 14, 2022)

– Thomas L. Root

Chewing on a Procedural Pretzel – Update for January 27, 2022

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NO PERMISSION NEEDED FOR AN APPEAL FOR WHICH PERMISSION NEEDED

“Huh?” you ask. No wonder.

This problem has happened to inmates before, especially during pandemic lockdowns. In 2015, Serwan Mizori filed a 28 USC § 2255 motion arguing that his lawyer had rendered ineffective representation. The motion languished for four years before his court got around to denying it.

pretzel2230127Once the court acted, Serwan had 60 days under the rules to file his notice of appeal (NOA). But as luck would have it, he was confined in the Special Housing Unit (“SHU”) for some prison rules violation right about then, and had no access to stamps or a law library. He got out of the SHU about two weeks after the NOA was due.

Serwan filed an NOA and a motion for leave to file it late under Federal Rule of Appellate Procedure 4(a)(5)(A)(ii). The district court turned him down, so Serwan appealed its denial of his right to file the NOA. To turn this into even more of a procedural pretzel, the 6th Circuit first took up the question of whether he needed a certificate of appealability (COA) to appeal denial of his motion to late file the NOA.

Section 2253(c)(1)(A) of Title 28 provides that unless a circuit justice or judge issues a COA, an appeal may not be taken from “the final order in a habeas corpus proceeding in which the detention complained of arises out of process” issued by a court. A COA is a ruling that the issue to be appealed is one that is subject to reasonable dispute, one that “jurists of reason” would find debatable.

Last week the Circuit ruled Serwan could argue his procedural motion without a COA. The Court said that for COA purposes, a “final order… disposes of the merits of a habeas corpus proceeding.”

rules201202Here, the district court’s two-page order denying Serwan’s motion under Rule 4(a)(5) “plainly did not dispose of the merits of his 2255 motion,” the Circuit said. “The district court’s July 2019 order denying the 2255 motion had already done that; and the order that Mizori seeks to appeal now said nothing about the merits of his underlying § 2255 motion.”

Thus, Serwan could proceed with appealing the denial of his late-filed notice of appeal without a COA. If he wins that, then he will require a COA.

No wonder lawyers make big bucks.

Mizori v. United States, Case No, 19-2433, 2022 U.S. App. LEXIS 1639 (6th Cir., Jan. 20, 2022)

– Thomas L. Root

Tilting the Level Playing Field – Update for December 27, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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GIVING THE POOR GOVERNMENT LAWYER A BOOST

Most of us imagine that litigation is a gladiatorial sport, one where the judge keeps it honest but otherwise leaves the parties to rise or fall by their wits, knowledge and preparation.

Lady Justice, after all, is blind to how the scales of justice tip.

justice171227Leonard Oliver got convicted of drug offenses along about seven years ago. Afterwards he filed a post-conviction motion under 28 USC 2255. When the court ruled against him in 2015, he apparently concluded that he probably should have appealed his conviction from four years before. So he filed a notice of appeal, attempting to do so.

The only problem with Len’s cart-before-the-horse approach to criminal litigation is that the Federal Rule of Appellate Procedure allow a criminal defendant 14 days to file a notice of appeal. Len was a little late, about three years and eight months late. Lucky for Len, the Supreme Court ruled earlier this year that a late-filed notice of appeal does not deprive the appeals court of subject-matter jurisdiction. Even luckier for Len, the government fought his appeal on the merits, never, for some inexplicable reason, objecting to the grossly late filing. Perhaps the luckiest break for Len, a party’s failure to timely object to timeliness forfeits its right to do so.

corso170112Lucky, lucky, lucky Len. Well, not so fast. Last week, the 4th Circuit last week held that just because the government overlooked the untimeliness does not mean the court has to. The Circuit invoked the inherent authority that all federal courts possess “to protect their proceedings and judgments in the course of discharging their traditional responsibilities.”

It is unsurprising that the Court found that in cases of prisoner civil litigation, where “complaints… are more likely to be “frivolous, malicious, or repetitive,” the courts could raise nonjurisdictional defenses where the government forgets to do so. Likewise, the 4th said, “a federal habeas court may also consider a statute-of-limitations defense sua sponte because [such] petitions implicate considerations of comity, federalism, and judicial efficiency to a degree not present in ordinary civil actions.”

Extrapolating, the Circuit said that “like meritless complaints and untimely habeas petitions, late-filed criminal appeals can implicate significant judicial interests. Most notably, they disrupt the finality of criminal judgments.” This is good reason, the Court said, to throw out a late-filed notice of appeal even where the government – because of forgetfulness or for strategic reasons – decides not to.

Say what? If the Court figures the defendant’s case could have been thrown out if the government had only thought to ask that it be, the Court can effectively take over the government’s case. And if the prisoner, who usually is acting as his own attorney and is litigating on a slightly smaller budget that the $2.074 billion allocated to U.S. Attorneys, needs a boost? Maybe he misses advancing a motion or argument that would carry the day for him. Will the judge step in with a useful suggestion?

ranch171227Don’t bet the farm on it, Lucky Len. Federal courts seem much more willing to correct one party’s oversights when the party is the government and prisoners are on the other side. Do the math: a prisoner’s case ends up with two prosecutors, one defendant… and no impartial judge.

United States v. Oliver, Case No. 15-4376 (4th Cir. Dec. 20, 2017)

– Thomas L. Root

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EDNY Judge Blasts Veteran Defense Attorney for ‘Inexcusably’ Abandoning Client – Update for August 15, 2017

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HOLD ON TO YOUR HATS…

hats170816Federal criminal cases generally move along at a brisk clip (“brisk” here being a relative term in the judicial system). For instance, the Speedy Trial Act requires that trials begin 70 days after indictment (although the statute has more holes than a Swiss cheese factory). Courts are usually parsimonious with continuances. Federal criminal subpoenas are sufficient to haul in witnesses from anywhere Old Glory flies, and motion deadlines are abbreviated.

When final judgment is rendered and the sentence imposed, a criminal defendant has a mere 14 days to file a notice of appeal, if he wants to challenge the conviction or sentence in the court of appeals. In the more casual federal civil world, parties wishing to appeal have 30 days, and if the party is part of the government (where nothing is done quickly), it has 60 days.

Adding to the tight appeal deadline is the fact that the defendant is often otherwise occupied, being in jail awaiting the bus ride to his or her final prison destination. It really falls to the defendant’s lawyer to get the notice of appeal – which, after all, is all of a paragraph long – on file.

deadline170816If a defendant misses the 14-day deadline, he or she has one final shot, a 30-day period after that during which the district court may extend the filing deadline for “excusable neglect or good cause.” An Eastern District of New York defendant successfully made that showing the other day – a rare occurrence – and in so doing drawing an unusual scorching for his lawyer from the court.

David Gotterup, who was convicted of mail, wire and bank fraud, was sentenced to 135 months on June 1 of this year. Although he had two lawyers representing him, he had to get his brother – who was not an attorney – to drop off his notice of appeal at the court. His brother, being a busy guy, got it there one day late, on June 16 instead of June 15. Dave promptly filed for permission to file one day late.

Eastern District of New York Judge Nicholas Garaufis held a hearing on Dave’s motion just a week ago. It found that Dave had told Joseph Conway, one of his lawyers, right after sentencing that he wanted to appeal. Dave said so. Lawyer Conway said so, but he also explained that Dave’s plea agreement contained an appeal waiver.

Dave pointed that even under the waiver, he was allowed to appeal on ineffective assistance of counsel grounds. Lawyer Conway said he told Dave that “he could file an appeal and ask for new counsel” if he wanted to. Conway even helped Dave’s brother complete the notice of appeal form and gave him filing instructions.

Dave, on the other hand, claimed he “was always under the impression that Mr. Conway was filing the appeal and that the appeal was in motion.” He thought the “only delay” was the filing fee that his brother “went and paid.” In fact, right up to the August 1 hearing, Dave “didn’t actually know that [he] was filing a motion… to be completely honest, I thought I was being represented by Mr. Conway in my appeal.”

ignore170816The District Court found excusable neglect justifying Dave’s late filing “due to the fact that Defendant reasonably believed that Trial Counsel was handling the filing of his notice of appeal.” Dave had promptly told his Conway he wanted to appeal, and because he was locked up, he had to rely on Conway to get the job done.

Judge Garaufis found that Conway’s later attempts to shift responsibility for the filing to Dave “understandably confused Defendant,” and clearly was skeptical about the lawyer’s story:

Mr. Conway represents that after the Amended Judgment was docketed, he told Defendant that he would need to file his notice of appeal pro se. Defendant avers that Mr. Conway ‘never said anything about a pro se representation.’ Even assuming that Mr. Conway’s version of the facts is true, Mr. Conway’s actions thereafter proved to be inconsistent with his directive that Defendant should proceed pro se. First, by Mr. Conway’s own account, Mr. Conway invited Defendant’s brother to his law office to help him fill out the notice of appeal form. It is not as though Mr. Conway extricated himself from the filing entirely. As such, Defendant’s belief that his brother ‘wasn’t filing a notice of appeal’ and was merely ‘picking up paperwork from Mr. Conway to drop off at the court,’ was entirely reasonable.

conway170816Second, after the Amended Judgment was entered, Mr. Conway continued to represent Defendant with respect to the restitution portion of his case. At the Hearing, Mr. Conway appeared to argue that his representation ended when the Amended Judgment was docketed on June 1, 2017; however, the Government represents that, as late as June 23, 2017, Mr. Conway was still acting as counsel for Defendant.

Judge Garaufis felt lied to, and made that clear, saying that “Conway misled the court by stating that once the Amended Judgment was filed, his ‘services to [Defendant] were over’… This splitting of hairs understandably confused Defendant. It is entirely reasonable for a defendant to think that an attorney handling one aspect of the case is handling the case in its entirety.

Conway argued that his retainer agreement did not contemplate appellate work, and that Dave’s plan to claim lawyer ineffectiveness precluded Conway – the presumed target of that claim – from filing the notice of appeal. The District Court noted that Conway was not just an experienced defense attorney but a former Assistant U.S. Attorney for 15 years who headed E.D.N.Y.’s criminal division. “As such,” the Court said, “he is quite obviously aware of trial counsel’s obligation to protect the appellate rights of a criminal defendant by timely filing a notice of appeal.”

interrupt1700816Judge Garaufis wrote that Conway “abandoned his client and left the task of filing a notice of appeal to his incarcerated client and Defendant’s brother who, importantly, is not an attorney… Based on Mr. Conway’s conduct, Defendant has a plausible claim of malpractice against his attorney. The court said Conway’s refusal to file the notice of appeal was “inexcusable as a matter of ethics and professionalism. As such, the court intends to refer this matter to the Committee on Grievances…”

Conway told New York Law Journal last Friday “I wholeheartedly disagree with the decision and look forward to an opportunity to present my case.” He apparently overlooked that he had a chance to present his case in front of U.S. District Judge Nicholas Garaufis a couple weeks ago. And that did not turn out so well.

United States v. Gotterup, Case No. 15-CR -498 (E.D.N.Y., August 14, 2017)

– Thomas L. Root

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