Opinion
CRIMINAL NO. 01-391.
December 11, 2007
MEMORANDUM AND ORDER
On June 5, 2002, Petitioner Christopher Padilla ("Petitioner") pled guilty pursuant to a plea agreement to one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On September 30, 2002, the Court sentenced him to 46 months imprisonment, three years supervised release, and a $100 special assessment. Now before the Court is Petitioner's timely-filed Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (the "Petition"). For the reasons that follow, the Petition will be granted.
Petitioner is currently on supervised release. However, his Petition is not moot because "in the criminal context, an individual who is on parole or released on his or her own recognizance is deemed in custody because of the significant restrictions imposed on his or her freedom." Kumarasamy v. Attorney General of U.S., 453 F.3d 169, 172 (3d Cir. 2006) (citing Jones v. Cunningham, 371 U.S. 236 (1963); Hensley v. Municipal Court, 411 U.S. 345 (1973)); see also Johnson v. Daniels, 204 Fed. Appx. 585, 586 (9th Cir. 2006) ("We conclude that Johnson's [habeas] petitions are not moot because, at the time of the district court's order [dismissing the petitions], he was on home confinement and, in any event, he is now on supervised release.").
I. BACKGROUND
II. LEGAL STANDARD
Solis v. United States252 F.3d 289295nunc pro tunc Strickland v. Washington466 U.S. 668689-92Strickland Roe v. Flores-Ortega528 U.S. 470477Strickland Solis252 F.3d at 293-94 Id. see also Peguero v. U.S. 526 U.S. 2328Rodriquez v. U.S.395 U.S. 327329-30U.S. ex rel. Senk v. Brierly 363 F. Supp. 5151
Because the Court is reinstating Petitioner's appellate rightsnunc pro tunc, the issue of whether counsel was ineffective for failing to object to the weapons enhancement is premature and will not be addressed since Petitioner will have the opportunity to challenge his sentence on direct appeal. See Bonner v. U.S., 2007 WL 2461751, at *1 (W.D. Pa. August 25, 2007) (holding that since the petitioner's counsel was ineffective for failing to file a notice of appeal, all other claims regarding ineffective assistance of counsel were premature and would be dismissed until after the petitioner's direct appeal).
III. ANALYSIS
This Court held a hearing on December 5, 2007 for the purpose of allowing Petitioner to present his claim that counsel did not follow his instruction to file an appeal. At the hearing, Petitioner testified affirmatively that: (1) he asked Harrison to file an appeal immediately following his sentencing; and (2) he tried unsuccessfully to contact Harrison regarding his appeal on other occasions within the ten-day deadline for filing an appeal. Harrison testified that he had no recollection that Petitioner asked him to file an appeal. Giving Petitioner the benefit of the doubt, the Court finds that he has met his burden of establishing by a preponderance of the evidence that counsel failed to file an appeal as requested. Accordingly, his appellate rights will be reinstated nunc pro tunc.
IV. CONCLUSION
After hearing testimony and considering the record, the Court will grant the Petition. An appropriate Order follows.
ORDER
AND NOW, this day of December, 2007, upon consideration of Petitioner Christopher Padilla's Motion to Vacate, Set Aside, or Correct Sentence (docket no. 48) (the "Petition"), the Government's response thereto, and the testimony presented at the December 5, 2007 hearing, it is ORDERED that:
(1) The Petition is GRANTED;
(2) Petitioner's direct appeal rights shall be REINSTATED and he shall be given the opportunity nunc pro tunc to file a notice of appeal; and
(3) Petitioner's current counsel is directed to a file a notice of appeal within 10 days from the date of this Order.