Opinion
Criminal Action No. 99-291 Section "N"
June 11, 2001
ORDER AND REASONS
Before the Court are several pro se motions filed by Defendant Anthony Quinn Bray. For the following reasons, the Court DENIES Defendant's Motion for Leave to File the Notice of Appeal Nunc Pro Tunc Due to Excusable Neglect, Motion for Appointment of New CJA Counsel to Perfect Appeal, and Motion for Leave on Appeal to Proceed In Forma Pauperis Nunc Pro Tunc. The Court GRANTS Mr. Bray's Motion to be Furnished Sentencing Transcript without Cost but DENIES his Motion to be Furnished Grand Jury Minutes without Cost. The Court ORDERS all parties to submit further briefing as set forth below.
A. BACKGROUND
On December 22, 1999, Defendant Anthony Quinn Bray pled guilty to a two-count indictment charging him with possession with the intent to distribute cocaine hydrochloride. Mr. Bray was sentenced on May 3, 2000 to 135 months imprisonment, the bottom of the guidelines range.
No appeal was filed within the time periods established by Federal Rule of Appellate Procedure 4(b). However, on April 26, 2001, the Court received several pro se submissions from Mr. Bray, including a "Motion for Leave to File the Notice of Appeal Nunc Pro Tunc Due to Excusable Neglect." On May 4, 2001, the Court received more pro se submissions from Mr. Bray, including a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.
B. LAW AND ANALYSIS
In his Motion for Leave to File the Notice of Appeal, Mr. Bray states that he "advised his Counsel he wished to appeal from the Judgment and Sentence entered" but his "Counsel failed to file the required Timely Notice of Appeal." He requests that the Court find excusable neglect and allow him to file his notice of appeal. Although ostensibly filed pursuant to Federal Rule of Civil Procedure 15(c) and Federal Rule of Criminal Procedure 45(b)(2), the Court shall treat his request as a motion for extension of time to file an appeal pursuant to Federal Rule of Appellate Procedure 4(b)(4). See Carlisle v. United States, 517 U.S. 416, 424 n. 4, 116 S.Ct. 1460, 1465 n. 4, 134 L.Ed.2d 613 (1996) (noting that FED. R. APP. P. 4(b) abrogated and replaced former Federal Rule of Criminal Procedure governing criminal appeals); United States v. Culbert, 215 F. Supp. 333, 335 (W.D. Mo. 1963) ("The time for taking the appeal cannot be extended by this Court under Rule 45(b) of the Federal Rules of Criminal Procedure.").
Federal Rule of Appellate Procedure 4(b) generally requires that a defendant's notice of appeal be filed in the district court within 10 days after the later of the entry of either the judgment or the order being appealed or the filing of the government's notice of appeal. See FED. R. APP. P. 4(b)(1)(A). However, "[u]pon a finding of excusable neglect or good cause, the district court may — be fore or after the time has expired, with or without motion and notice — extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b)." FED. R. APP. P. 4(b)(4).
Rule 4(b)(4)'s time limits have been interpreted strictly. However, where the failure to file a timely notice of appeal has resulted from an error that violated the defendant's constitutional rights, some courts have vacated criminal judgments and ordered resentencings in order to permit an appeal, a practice consistent with a strict construction of Appellate Rule 4(b) and the remedies available under 28 U.S.C. § 2255. For example, in United States v. Davis, 929 F.2d 554 (1991), the Tenth Circuit stated:
Although a timely notice of appeal is "mandatory and jurisdictional," we hold that the district court correctly resentenced defendant to enable him to perfect an appeal because he was denied effective assistance of counsel at the original sentencing hearing. "[A] defendant is denied effective assistance of counsel if he asks his lawyer to perfect an appeal and the lawyer fails to do so by failing to file a brief, a statement of appeal, or otherwise." The proper remedy is a resentencing to enable defendant to perfect an appeal. Resentencing of defendant was proper because the record established that he instructed counsel to perfect an appeal and counsel did not. We have jurisdiction because defendant filed a timely notice of appeal after the valid resentencing.Id. at 557 (internal citations omitted). "[I]n order to show that appellate counsel was constitutionally deficient in not filing an appeal, the petitioner must demonstrate that he asked to have an appeal filed."McHale v. United States, 175 F.3d 115, 119 (2d Cir. 1999) (citing Morales v. United States, 143 F.3d 94, 95-96 (2d Cir. 1998) (per curiam)). InDavis, the district court was presented with actual evidence that the defendant wished to pursue an appeal: His counsel stated at the sentencing hearing that the defendant intended to appeal. See 929 F.2d at 556.
In the case at bar, the Court DENIES Mr. Bray leave to file his notice of appeal without prejudice because his motion is premature. Before the Court can determine whether Mr. Bray should be allowed to file his notice of appeal, it first must determine whether Mr. Bray's counsel was ineffective in failing to pursue a timely appeal. The Court believes that, as in Davis and Morales, a § 2255 motion is the proper vehicle to resolve this issue.
In Davis and Morales, the issue of ineffectiveness, and thus the decision as to whether to permit an appeal, was decided in the context of a § 2255 petition.
In order to properly resolve the issue of ineffectiveness, the Court ORDERS all parties to submit briefing. Mr. Bray is ORDERED to submit an affidavit by July 9, 2001 stating the facts surrounding his alleged request that an appeal be filed on his behalf. Robert F. Barnard, Mr. Bray's former counsel, is ORDERED to file an affidavit by July 18, 2001 detailing his recollection of the events leading to his decision not to file an appeal. The deadline for the Government's response to Mr. Bray's § 2255 motion, presently set for July 18, 2001, is CONTINUED until August 22, 2001.
The Court suggests that Mr. Bray decide whether he and his attorney discussed pursuing an appeal or not. As they now stand, Mr. Bray's allegations tend to contradict themselves. In his Motion for Leave to File the Notice of Appeal, Mr. Bray alleges that he "advised his Counsel he wished to appeal from the Judgment and Sentence entered," but contradicts himself in his § 2255 brief, arguing that his "counsel failed to confer with the defendant about an appeal" and thereby violated his "constitutionally imposed duty to consult with the defendant about an appeal when the defendant would [have] appealed his sentence even if his counsel had to file an Anders brief." Mem. in Support of § 2255 Motion p. 26.
In light of this decision, the Court DENIES Mr. Bray's Motions for Appointment of New CJA Counsel to Perfect Appeal and for Leave on Appeal to Proceed In Forma Pauperis Nunc Pro Tunc, also without prejudice.
The Court GRANTS Mr. Bray's Motion to be Furnished Sentencing Transcript without Cost but DENIES his Motion to be Furnished Grand Jury Minutes without Cost. At least with respect to his allegations concerning the failure to appeal, Mr. Brays § 2255 suit is not frivolous and the sentencing transcript is needed to decide the issues raised ( e.g., whether mention of appeal was made at the sentencing hearing). See 28 U.S.C. § 753 (f) ("Fees for transcripts furnished in proceedings brought under section 2255 of this title to persons permitted to sue . . . in forma pauperis shall be paid by the United States out of money appropriated for that purpose if the trial judge . . . certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit. . . ."). The grand jury minutes are not necessary to any of the issues Mr. Bray raises. For example, whether the indictment charges specific drug quantities may be discerned from the indictment itself; it does not.
C. CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendant's Motion for Leave to File the Notice of Appeal Nunc Pro Tunc Due to Excusable Neglect, Motion for Appointment of New CJA Counsel to Perfect Appeal, and Motion for Leave on Appeal to Proceed In Forma Pauperis Nunc Pro Tunc are DENIED without prejudice.
IT IS FURTHER ORDERED that Defendant FILE an affidavit by July 9, 2001 and that Robert F. Barnard FILE an affidavit by July 18, 2001, consistent with the reasons set forth above. IT IS FURTHER ORDERED that the deadline for the Government's response to Mr. Bray's § 2255 motion, presently set for July 18, 2001, is CONTINUED until August 22, 2001.
IT IS FURTHER ORDERED that Defendant's Motion to be Furnished Grand Jury Minutes without Cost is DENIED but Defendant's Motion to be Furnished Sentencing Transcript without Cost is GRANTED. Accordingly, IT IS ORDERED that the cost of the transcript of the May 3, 2000 sentencing hearing be paid by the United States of America.