In today’s United States v. Lajud-Pena (Diaz), the Second Circuit (Pooler, Parker, Livingston, C.JJ.) granted the government’s motion to dismiss an untimely appeal but remanded with instructions that the district court “convert the Appellant’s notice of appeal (as supplemented by the Defendant’s brief claiming ineffectiveness resulted in his failure to timely file his appeal) into a petition” under 28 U.S.C. § 2255.
Should the aspiring appellant establish in district court that his lawyer failed to timely file a notice of appeal as instructed, the relief will presumably be issuance of a new judgment from which he could appeal. See Roe v. Flores-Ortega, 528 U.S. 470 (2000); United States v. Fuller, 332 F.3d 60 (2d Cir. 2003). And should that appeal ultimately prove unsuccessful, the Circuit indicated the “converted” § 2255 petition seeking “only reinstatement of the right to a direct appeal” will not render a subsequent § 2255 petition “second or successive” within the meaning of § 2255(h). See Urinyi v. United States, 607 F.3d 318 (2d Cir. 2010).
Takeaway for the Defense Bar
Avoid the kind of excess litigation and procedural hoop-jumping here: A notice of appeal should be filed in every criminal case unless the defendant, after discussing the matter with counsel, decides not to appeal.