Opinion
No. 02 CR. 173 (DLC)
October 17, 2002
OPINION AND ORDER
Defendant Michael Kinyua ("Kinyua") seeks to file an untimely notice of appeal from his conviction for bank fraud and check forgery. He contends that he instructed his counsel to file a notice of appeal and seeks appointment of new counsel. For the reasons that follow, Kinyua is instructed to inform the Court no later than November 15, 2002, whether he consents to a recharacterization of his letter as a petition for a writ of habeas corpus pursuant to Section 2255 of Title 28 of the United States Code ("Section 2255"). Should he not so consent, Kinyua is advised that a Section 2255 petition must be filed within one year of the date his judgment of conviction became final or it may be barred as untimely.
BACKGROUND
On February 15, 2002, Kinyua pleaded guilty pursuant to a plea agreement to one count each of bank fraud, passing counterfeited checks, and conspiracy to commit bank fraud. In his plea agreement, Kinyua waived his right to appeal any sentence within or below a stipulated guidelines range of twenty-one to twenty-seven months imprisonment. He was sentenced on June 21, 2002, principally to twenty-seven months imprisonment. He was advised at the sentencing proceeding that any notice of appeal had to be filed within ten days of the filing of the judgment of conviction. The judgment of conviction was entered on June 21, 2002.
During the sentencing proceeding the Court explained:
Mr. Kinyua, I have to advise you of the following: I'm unaware of any ground for an appeal in this case, but should you file a notice of an appeal, you must file that within 10 days of the judgment of conviction. If you are unable to pay the cost of an appeal, you may apply for leave to appeal in forma pauperis.
By letter dated August 22 and received by this Chambers on September 6, 2002, Kinyua informed the Court that he had requested that his attorney appeal from his sentence and that he has not heard from his attorney. He advised that he wanted to appeal his sentence and requested appointment of new counsel. Kinyua's counsel responded in a letter dated September 12, 2002, that Kinyua never requested that he file an appeal.
DISCUSSION
In a criminal case, a defendant has ten days after entry of judgment in which to file a notice of appeal. Fed.R.App.P. 4(b)(1)(A)(i). An untimely notice of appeal is a "jurisdictional defect" that would require "dismissal of the appeal without reaching its merits." United States v. Batista, 22 F.3d 492, 493 (2d Cir. 1994) (per curiam). Rule 4(b)(4) of the Federal Rules of Appellate Procedure, however, allows the district court to extend a defendant's time to file a notice of appeal by thirty days. This rule provides that
[u]pon a finding of excusable neglect or good cause, the district court may — before 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). When "a criminal defendant files a notice of appeal after the ten day deadline of Rule 4(b), but before the additional thirty day period for requesting extensions has expired, the district court should treat the notice as a request for an extension." Batista, 22 F.3d at 493 (emphasis supplied). Should the court find excusable neglect and grant the extension, "the notice of appeal will become effective nunc pro tunc." Id. at 494.
As a notice of appeal, Kinyua's letter, filed more than ten days after entry of his judgment of conviction on June 21, 2002, is untimely. Construed as a request for an extension of time to file a notice of appeal, the letter is also untimely. Even assuming that Kinyua submitted the letter to prison officials on the same date as appears on the letter (August 22), and using that date as the date of filing, see Knickerbocker v. Artuz, 271 F.3d 35, 37 (2d Cir. 2001) (per curiam), the letter was "filed" after expiration of the thirty-day window and cannot be made timely by a nunc pro tunc extension of thirty days. His request for an extension of time to appeal must therefore be denied.
Kinyua's letter could, however, be recharacterized as a petition for a writ of habeas corpus pursuant to Section 2255, raising a claim based on his trial counsel's failure to file a notice of appeal. Garcia v. United States, 278 F.3d 134, 137 (2d Cir. 2002). In order to make out a claim for ineffective assistance of counsel, a petitioner must show "(1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant." Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (citation omitted)
Where counsel has not filed an appeal but has been asked by the defendant to do so, ineffective assistance is presumed. McHale v. United States, 175 F.3d 115, 119(2d Cir. 1999); see also Restrepo v. Kelly, 178 F.3d 634, 642(2d Cir. 1999). If appellate counsel believes that an appeal is meritless but has been asked by her client to appeal, she must inform the court of her belief, seek permission to withdraw, and file anAnders brief. Anders v. State of Cal., 386 U.S. 738, 744 (1967)
"If a petitioner has successfully shown that the petitioner was denied the right to direct appeal, the proper remedy is to vacate the sentence and remand for resentencing." Garcia, 278 F.3d at 137. The district court need not reconsider the sentence but may simply "enter a new judgment imposing the same sentence in open court with defense counsel present." Id. at 138.
Although the claim raised by Kinyua could be understood as a Section 2255 petition for habeas corpus, such a conversion may not be accomplished without the consent of the defendant. The Anti-Terrorism and Effective Death Penalty Act, enacted in April 1996, severely limits a petitioner's ability to bring second or successive petitions for habeas corpus. As a result,
Section 2255 provides that a second or successive motion must be certified . . . by a panel of the appropriate court of appeals to contain
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255(2002)
[i]f a district court receiving a motion under some other provision of law elects to treat it as a motion under § 2255 and then denies it, that may cause the movant's subsequent filing of a motion under § 2255 to be barred as a `second' § 2255. Thus a conversion, initially justified because it harmlessly assisted the prisoner-movant in dealing with legal technicalities, may result in a disastrous deprivation of a future opportunity to have a well-justified grievance adjudicated.Adams v. United States, 155 F.3d 582, 583(2d Cir. 1998) (per curiam). Thus, a court may not
recharacterize a motion purportedly made under some other rule as a motion made under § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharacterized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized.Id. at 584. Because the nature of the relief sought, namely, reinstatement of a right to appeal, does not clearly render his letter a Section 2255 habeas petition, Kinyua's letter should be considered a Section 2255 petition only if he consents to this recharacterization.
CONCLUSION
For the reasons stated above, Kinyua is instructed to inform the Court no later than November 15, 2002, whether he consents to a recharacterization of his letter as a petition for a writ of habeas corpus pursuant to Section 2255. If he consents to recharacterization of his petition, he has until December 13, 2002, to supplement his claims. Any opposition by the Government is due January 17, 2003. Should he not so consent, Kinyua is advised that his application dated August 22 will be deemed withdrawn. Kinyua is further advised that any Section 2255 petition must be filed within one year of the date his judgment of conviction became final. His request for appointment of counsel is denied.