Opinion
02 Civ. 649 (SAS), 99 CR 1193 (SAS).
July 14, 2008
For Petitioner: Georgia J. Hinde, Esq., New York, New York.
For Respondent: Edward Y. Kim, Assistant United States Attorney, New York, New York.
MEMORANDUM OPINION AND ORDER
Petitioner Joseph Sapia has moved to vacate and reenter the Judgment of Conviction entered by this Court on January 3, 2001, so that he may file a "timely" notice of appeal. Because this motion constitutes a second or successive petition under section 2255 of title 28 of the United States Code ("section 2255"), it must be filed with the United States Court of Appeals for the Second Circuit.
See 28 U.S.C. § 2255(h) ("A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals. . . .").
The facts leading to this conclusion are simply stated. On January 28, 2002, Sapia filed a motion to vacate, set aside or correct sentence pursuant to section 2255. This Court rejected the claims raised therein and denied the motion. Sapia then moved for reconsideration which was also denied. Sapia then appealed the denial of his section 2255 motion. The Second Circuit held that the claims raised in the motion were procedurally barred because petitioner failed to appeal his conviction directly. A petition for rehearing and rehearing en banc were also denied. Sapia filed the instant motion on July 11, 2007, asking this Court to vacate and reenter his judgment of conviction so that he might cure his procedural default by filing a notice of appeal. This request is based on petitioner's contention that his trial counsel was ineffective because he failed to file a notice of appeal.
See Sapia v. United States, 433 F.3d 212 (2d Cir. 2005).
According to the terms of the plea agreement, Sapia agreed not to appeal his sentence if he was sentenced within or below the stipulated Guidelines range of 240 to 293 months in custody. Sapia was sentenced to 270 months.
It is undisputed that a "district court has no power to entertain a second or successive § 2255 motion unless the appropriate court of appeals has authorized the filing of that motion in the district court." It is also well established that a "determination that claims . . . were procedurally defaulted qualifies as an adjudication on the merits." Because Sapia's first habeas motion was denied on the basis of a procedural default, the instant motion is clearly a second or successive petition.
Poindexter v. Nash, 333 F.3d 372, 382 (2d Cir. 2003).
Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001).
Petitioner disagrees with this analysis, citing United States v. Fuller for the proposition that the Second Circuit "has consistently allowed the restoration of a defendant's lost right to his direct appeal without requiring the filing of a § 2255 motion or adherence to the usual § 2255 procedures." In Fuller, defendant's counsel requested the district court to extend his time to file a notice of appeal, which was granted. Approximately seven months later, counsel filed a notice of appeal on the defendant's behalf. The appellate court, which lacked jurisdiction over the appeal, had to decide whether its only option was to dismiss for lack of jurisdiction. The court dismissed the appeal as untimely and remanded to the district court with "instructions to vacate the judgment and enter a new judgment from which a timely appeal may be taken."
332 F.3d 60 (2d Cir. 2003).
7/3/08 Letter from Georgia H. Hinde, petitioner's counsel, at 1.
See Fuller, 332 F.3d at 63.
See id.
See id. at 64.
Id. at 65.
In taking this course of action, the Second Circuit deliberately bypassed the remedy found in section 2255. This shortcut was warranted for several reasons. First, it was undisputed that the defendant asked his attorney to file a notice of appeal which was ultimately filed "several months after expiration of the maximum allowable 40-day period." Second, the parties agreed that "counsel's failure to file a timely appeal in a criminal case, when requested by a defendant, constitutes ineffective assistance of counsel, entitling the defendant to relief." Finally, the appellate court noted the following disadvantages with respect to the section 2255 remedy: (1) waste of time and judicial resources; (2) possible application of the stringent rules regarding second or successive petitions; and (3) expiration of the one-year statute of limitations. Thus, because the judgment was vulnerable to attack in any event, the court reasoned that permitting a direct appeal would facilitate an eventual ruling on the merits. Fuller is distinguishable from Sapia's case on several grounds. First, Sapia stands in a different procedural posture from Fuller. In Fuller, no section 2255 motion had been made as the case was on direct appeal. Here, Sapia has already filed one section 2255 motion, which was denied by this Court — a decision affirmed on appeal. Second, unlike Fuller, it is not clear that Sapia's attorney was constitutionally ineffective. With regard to the notice of appeal, Sapia's trial attorney, Louis M. Freeman, states:
Id. at 64.
Id.
See id. at 65.
See id. at 66 ("[W]e are taking only preliminary steps to enable him to pursue that appeal in a manner that will provide a sound jurisdictional basis for whatever ruling is ultimately made on the merits of that appeal.").
As the docket shows, I did not file a notice of appeal on Mr. Sapia's behalf after his sentencing. I do not have any clear recollection about the circumstances that led me not to file a notice of appeal as I usually do, nor can I recall what advice I may have given to Mr. Sapia about his right to appeal, as limited by his plea agreement. Nor do I recall whether Mr. Sapia asked me about an appeal prior to or shortly after his sentencing.
Declaration of Louis M. Freeman, attached to Sapia's Motion to Vacate and Reenter the Judgment of Conviction, ¶ 3.
Nor does Sapia state that he expressly asked his attorney to file a notice of appeal on his behalf. In his Declaration, Sapia alleges the following:
Louis M. Freeman represented me at both my plea and sentencing proceedings. Although my plea agreement contained a provision waiving my right to appeal a sentence falling within the guideline range set in the agreement, the district judge advised me at the time of my sentencing that I had a right to appeal my sentence, and also asked Mr. Freeman to assist me with my appeal. I therefore expected Mr. Freeman to take all the normal steps to allow me to go forward with my direct appeal. I also asked Mr. Freeman to send me copies of my transcripts and other legal papers so that I could assist with the process of appealing my sentence.
Declaration of Joseph Sapia, attached to the Motion to Vacate and Reenter the Judgment of Conviction, ¶ 3.
Given the above statements, it is unclear whether Sapia actually asked his attorney to file a notice of appeal, or if he merely expected that one would be filed on his behalf. Given this ambiguity, this case resembles United States v. Moreno-Rivera, where the court distinguished Fuller as follows:
Ineffective assistance of counsel claims are generally reserved for collateral review. See Massaro v. United States, 538 U.S. 500, 504-05 (2003) ("[I]n most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance. When an ineffective-assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose."); United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003).
In Fuller, we departed from this general rule, and fashioned a remedy, because it was undisputed that the defendant's trial counsel had rendered constitutionally ineffective assistance by failing to file a timely appeal that the defendant had requested. Fuller thus fell into "a narrow category of cases in which the defendant has a new counsel on appeal and argues no ground of ineffectiveness that is not fully developed in the trial record." United States v.Salameh, 152 F.3d 88, 160 (2d Cir. 1998) (internal quotation marks omitted). We have permitted consideration of ineffective assistance claims on direct review in these circumstances. See id.
472 F.3d 49, 52 (2d Cir. 2006) (parallel citations omitted).
In addition to the ambiguous record regarding Freeman's alleged ineffectiveness, another factor that distinguishes this case from Fuller is jurisdiction. Simply put, there is no authority outside of section 2255 that permits this Court to vacate and reenter a criminal judgment. As aptly summarized in United States v. Arroyo:
Fuller is essentially an explication of appellate jurisdiction. The Second Circuit explained that appellate jurisdiction extends not only to vacating a judgment on the merits but also to ordering a district court to dispose of the case "as justice may require." Fuller says nothing about the district court's independent authority to take similar actions. It holds that, under certain circumstances, the court of appeals can order a district court to take actions that would ordinarily only be taken by the district court pursuant to a section 2255 petition. It does not, however, say that a district court can, on its own, exercise its section 2255 authority even when no section 2255 petition has been filed. In other words, Fuller explained that a court of appeals can, when faced with an untimely notice of appeal, do more than just dismiss the case, but it did not hold that a district court has any power to vacate a judgment before a defendant has made a section 2255 motion.
392 F. Supp. 2d 292, 296 (D. Conn. 2005) (footnote omitted).
I agree with the Arroyo court's conclusion that a district court does not have the "inherent power" to vacate a criminal judgment outside of section 2255 and the Federal Rules of Appellate Procedure.
See id. at 296-97.
Accordingly, because the instant motion represents a second or successive petition, it is transferred to the United States Court of Appeals for the Second Circuit. The Clerk of the Court is directed to close this motion (Document # 344 in case no. 99 CR 1193(SAS)).
SO ORDERED: