Opinion
No. 1:02-CV-133, (1:00-CR-55)
July 18, 2002
MEMORANDUM OF DECISION AND ORDER
Currently before this Court is a motion for post-conviction relief brought pursuant to 28 U.S.C. § 2255 by the petitioner in this case, Aaron L. Love ("Love"), against the United States of America ("the government" or "United States") on April 15, 2002. Love alleges that he was denied the right to appeal his conviction because of ineffective assistance of counsel The government responded to Love's petition on April 29, 2002. Love replied on May 15, 2002. On July 18, 2002, the Court held an evidentiary hearing regarding the pending section 2255 motion. For the following reasons, Love's petition for post-conviction relief will be GRANTED.
FACTS
On February 28, 2001, Love was convicted by a jury of violating 18 U.S.C. § 922 and 924 by being a felon in possession of a firearm. Prior to his sentencing, Love sent his trial attorney, Donald Swanson ("Swanson"), a letter indicating that he did not want Swanson to file an appeal on his behalf and that "he had something else in mind." Swanson understood Love to mean that Love intended to file a section 2255 motion rather than a direct appeal.
At his sentencing hearing on May 17, 2001, the Court told Love, "[t]he Court reminds the defendant he can appeal this conviction. The defendant is reminded with few exceptions a notice of appeal must be filed within ten days of judgment, which would be today. If the defendant is unable to pay the cost of an appeal, he may apply for leave to appeal in forma pauperis. If the defendant so requests, the Clerk of the Court will prepare and file a notice of appeal on his behalf." The Court then asked, "[i]s there anything else we should take up at this time?" The remainder of the pertinent discussion appears in the transcript as follows:
MR. SWANSON: Yes, your Honor, there is. I have conferred with Aaron Love in this case, and he does not wish to take an appeal to the Seventh Circuit. And I would just like to make that a matter of record. He has his reasons, which I understand.
THE COURT: Is that correct, Mr. Love?
THE DEFENDANT: Well, I don't know exactly what everything means. I would like to appeal this conviction.
MR. SWANSON: Well, so — so we understand one another, Your Honor, he intends to file a habeas corpus, a 2255. And in that, he would be — there would be some issues as far as trial counsel goes.
THE COURT: I see. Well —
MR. SWANSON: That he would like to reach.
(Emphasis added). No notice of appeal was filed for Love by either Swanson or the Clerk of the Court.
Love testified at the July 18, 2002 evidentiary hearing that, in actuality, he intended to keep both the option of filing a direct appeal to the Seventh Circuit and the option of filing a section 2255 motion open. He merely did not want Swanson to represent him on appeal. As a result, Love argues that Swanson was ineffective in failing to file an appeal on his behalf.
DISCUSSION
According to Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994), failure of counsel to file an appeal, despite the defendant's request that he do so, constitutes ineffective assistance of counsel per se, and the defendant need not show prejudice in order to prevail upon his ineffective assistance claim. However, relief is available only if the defendant requested that counsel file an appeal and counsel refused or ignored the request. Id. at 718-19. In this case, the Court finds that Love did request to have a notice of appeal filed on his behalf. Both the tape of the May 17, 2001 sentencing hearing and the transcript indicate that Love clearly said, "I would like to appeal this conviction."
However, the Court also finds that Swanson was not ineffective as counsel. Instead, Swanson merely followed the directives of his client. This appears to be a case where the Court and the Clerk of the Court, in essence, "dropped the ball." The Court and the Clerk should have taken Love's statement that he would like to appeal his conviction at its face value and filed a notice of appeal on his behalf. Therefore, Love was denied his right to appeal and his motion for post-conviction relief will be granted.
In Castellanos, the Seventh Circuit stated that if a defendant is denied his right to appeal because his counsel fails to file an appeal, the remedy is that "defendant receives the right to an appellate proceeding, as if on direct appeal, with the assistance of counsel." Castellanos, 26 F.3d 717, 720. Here, although the Court has found that Swanson was not ineffective, the Court believes the remedy should be the same. The net effect of this Court's error was the same as if Love's counsel had been ineffective — Love was not able to appeal his conviction in a timely manner. Therefore, the Court believes Love should receive the right to a direct appeal.
However, this remedy presents a bit of a procedural complication. Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure dictates that a criminal defendant must file a notice of appeal within ten days after the entry of judgment. Indeed, this Court advised Love as much at his sentencing hearing. The times for filing notices of appeal set forth in the Federal Rules of Appellate Procedure are jurisdictional and strictly applied. See Smith v. Barry, 502 U.S. 244, 248 (1992). Therefore, the time for Love to file an appeal of his conviction would have run ten days after he was sentenced on May 17, 2002. If Love were merely to file a notice of appeal now, the Court of Appeals would lack jurisdiction because the appeal was filed out-of-time. Moreover, district courts do not possess the power to authorize an out-of-time appeal. See United States v. Pearce, 992 F.2d 1021, 1022 (9th Cir. 1993).
As a result, the proper procedure is for this Court to (1) vacate the criminal judgment against Love; (2) reimpose the same sentence upon Love; (3) advise Love of all the rights associated with an appeal from any criminal sentence; and (4) advise Love that the time for filing a notice of appeal from that re-imposed sentence is ten days. See United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000); Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989). This the Court will do forthwith.
CONCLUSION
Based upon the foregoing, Love's petition for post-conviction relief pursuant to 18 U.S.C. § 2255 is hereby GRANTED on the basis that this Court should have interpreted Love's statements at the May 17, 2001 sentencing hearing to be a request for an appeal. The Court will now VACATE the criminal judgment entered against Love on May 17, 2002. The Defendant is set for re-sentencing on July 19, 2002 at 8:30 a.m.