Opinion
Nos. 07-0481-pr (L), 07-0513 (C), 07-0514 (XAP).
January 25, 2010.
Appeal from an order of the United States District Court for the District of Connecticut (Peter C. Dorsey, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the District Court is AFFIRMED except to the extent that it was rendered moot by the District Court's April 5, 2007 order.
John T. Walkley, Law Offices of John T. Walkley, Monroe CT, for Gordon Lauria.
Markos Pappas, pro se, Pollock, LA, for Markos Pappas.
David T. Huang, Assistant United States Attorney (Nora R. Dannehy, Acting United States Attorney, and William J. Nardini, Assistant United States Attorney, on the brief), District of Connecticut, Hartford, CT, for Appellees-Cross-Appellants.
PRESENT: JOSÉ A. CABRANES, ROSEMARY S. POOLER, and GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Petitioners-appellants Markos Pappas ("Pappas") and Gordon Lauria ("Lauria") appeal from an order of the District Court entered on December 13, 2006, in which the District Court: (1) denied Pappas's 28 U.S.C. § 2255 motion in its entirety; (2) denied Lauria's § 2255 motion as to all but one claim; and (3) granted Lauria's § 2255 motion insofar as he claimed that he had been denied the effective assistance of appellate counsel due to counsel's failure to argue that the 420-month term of imprisonment of Lauria's sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The government cross-appealed from the December 13, 2006 order. On April 5, 2007, after all parties had filed notices of appeal, the District Court granted the government's motion for reconsideration of its December 13, 2006 order insofar as it granted relief on one of Lauria's claims. We assume the parties' familiarity with the remaining factual and procedural issues.
Lauria's appeal in 07-0513-pr was dismissed for failure to pay the docketing fee or move for in forma pauperis ("IFP") status, and a mandate issued thereafter. See 07-0513-pr, entry at July 25, 2008. Notwithstanding that order, counsel for Lauria continued to file documents, often with leave of this Court, in Pappas's consolidated appeal, No. 07-0481-pr. Accordingly, we will construe the District Court's April 5, 2007 order granting Lauria a certificate of appealability to include a grant of IFP status and we recall the mandate and reinstate the appeal. See Fed.R.App.P. 2.
In reviewing a district court's denial of relief under § 2255, we review findings of fact for clear error and conclusions of law de novo. See Ventry v. United States, 539 F.3d 102, 110 (2d Cir. 2008).
As an initial matter, the government's cross-appeal is dismissed as moot. The government's appeal is from the portion of the December 13, 2006 order granting Lauria § 2255 relief concerning his sentencing claim. After the government filed its notice of appeal, however, the District Court amended the December 13, 2006 order to let Lauria's original sentence of 420 months stand, thereby mooting the government's appeal.
Additionally, to the extent that Lauria challenges the District Court's April 5, 2007 order, the appeal is dismissed for lack of appellate jurisdiction. Where a party files a motion for reconsideration after the entry of an appealable final order, as all parties did here, any party that seeks to appeal the disposition of the reconsideration motion, or a final order altered or amended upon such a motion, must file a notice of appeal after the entry of the new order. See Fed.R.App.P. 4(a)(4)(B)(ii) ("A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment's alteration or amendment upon such a motion, must file a notice of appeal, or an amended notice of appeal . . . within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion."); Sorensen v. City of New York, 413 F.3d 292, 296 (2d Cir. 2005) ("If the judgment is altered upon disposition of a posttrial motion . . . and if a party wishes to appeal from the disposition of the motion, the party must amend the notice to so indicate." (quoting Fed.R.App.P. 4(a)(4) 1993 Advisory Committee Notes)). Here, Lauria did not file a notice of appeal from the April 5, 2007 order, nor did he seek to amend his previously-filed notice of appeal, which addressed only the District Court's December 13, 2006 order. Accordingly, we lack appellate jurisdiction to consider Lauria's arguments challenging the April 5, 2007 order.
With respect to Pappas's claims and the remainder of Lauria's claims, we affirm the order of the District Court, entered December 13, 2006, substantially for the reasons stated in the District Court's thorough and careful ruling of that date. Lauria v. United States, Nos. 96cr185, 01cv1893, 01cv1894, 2006 WL 3704282 (D.Conn. Dec.13, 2006).
CONCLUSION
We have considered all of petitioners' arguments and find them to be without merit. Petitioner Lauria's appeal is dismissed for lack of appellate jurisdiction insofar as it relates to the District Court's April 5, 2007 order. With respect to the remaining claims of both petitioners, the December 13, 2006 order of the District Court is AFFIRMED except to the extent that it was rendered moot by the District Court's April 5, 2007 order.