Opinion
01 Cr. 674 (DLC)
November 19, 2002
Victor Mercado, Allenwood Low Security Correctional Facility, White Deer, PA
Richard Daddario, Office of the United States Attorney, Southern District of New York, New York, N.Y.
OPINION AND ORDER
In a document apparently signed on September 28, 2002, and filed on October 9, 2002, defendant Victor Mercado ("Mercado") moves for appointment of new counsel for appeal, alleging that his assigned counsel at sentence failed to raise issues that could have reduced his sentence. The time for an appeal has expired. For the reasons that follow, Mercado is instructed to inform the Court no later than December 20, 2002, whether he consents to a recharacterization of his motion as a petition for a writ of habeas corpus pursuant to Section 2255 of Title 28 of the United States Code ("Section 2255"), at which time, he may renew his request for appointment of counsel. Should he not so consent, Mercado 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 December 21, 2001, Mercado pleaded guilty pursuant to a written plea agreement to one count of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, 841(a)(1), and 841(b)(1)(A). In his plea agreement, Mercado waived his right to appeal any sentence within or below a stipulated guideline range of 120 to 135 months' imprisonment. On March 22, 2002, Mercado was sentenced, principally, to 120 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 March 22, 2002.
During the sentencing proceeding the Court explained:
Mr. Mercado, I have to advise you about your right to appeal. Through the plea agreement that you executed, you gave up or waived your right to appeal or challenge a sentence such as the one I have imposed here. Nonetheless, I must tell you of the following: Should you file a notice of appeal, it must be filed within ten 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.
Mercado wrote a letter to the Clerk of Court dated July 18, and filed on July 29, which enclosed letters of June 11 and July 18 to his former counsel Robert A. Soloway ("Soloway"). The July 18 letter inquired into whether Soloway had submitted a notice of appeal. Both letters to Soloway raised issues that Mercado believed should be included in an appeal. On July 26, 2002, Soloway responded in a letter that he had not filed a notice of appeal because Mercado had been sentenced within the guidelines range contained in the plea agreement and had waived his right to appeal. On October 9, 2002, Mercado filed the instant motion for appointment of counsel for appeal to assist him in his claim that Soloway was ineffective at sentence.
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 requires "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, Mercado's submissions, filed more than ten days after entry of his judgment of conviction on March 22, 2002, are untimely. Construed as a request for an extension of time to file a notice of appeal, they are also untimely.
Mercado's motion of October 9 could, however, be recharacterized as a petition for a writ of habeas corpus pursuant to Section 2255, raising a claim based on his counsel's failure to file a notice of appeal and to raise certain arguments at sentence. 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, 476-66 (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 an Anders 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 Mercado 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 Mercado's motion for appointment of counsel is not clearly a Section 2255 habeas petition, Mercado's motion may be considered a Section 2255 petition only if he consents to this recharacterization.
Because this Court must await Mercado's consent before recharacterizing his motion as a writ of habeas corpus, it would be premature to appoint counsel at this time. Thus, Mercado's application for appointment of counsel for appeal is denied without prejudice. Should Mercado consent to a recharacterization of his motion, he may renew his request for appointment of counsel at that time.
CONCLUSION
For the reasons stated above, Mercado is instructed to inform the Court no later than December 20, 2002, whether he consents to a recharacterization of his motion as a petition for a writ of habeas corpus pursuant to Section 2255. If he consents to recharacterization of his petition, he should include all of the claims that he wishes to be considered in his habeas petition. Mercado may also renew his request for appointment of counsel at that time. Should he not so consent, Mercado is advised that any Section 2255 petition must be filed within one year of the date his judgment of conviction became final.