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United States v. Vilar, No. 10-521-cr (2d Cir. July 19, 2011) (Jacobs, CJ, Rakoff, DJ)

Defendant Vilar and his co-defendant Tanaka were convicted of fraud-related charges after a jury trial. Both filed timely notices of appeal and the appeals were consolidated. Vilar, represented by new counsel, decided to develop a claim that his trial counsel was ineffective, and make a motion under 18 U.S.C. § 2255. This per curiam resolves his motion to dismiss the appeal without prejudice, with leave to reinstate it after completing the 2255. The circuit denied the motion, but granted Vilar a six-month extension of time to perfect his appeal.

The court noted that Vilar’s request was somewhat unusual. Usually, a defendant first pursues a direct appeal then, if he wishes, a 2255 motion. Vilar’s application would allow a collateral attack first and a direct appeal second, a route that “raises concerns both jurisdictional and practical.”

Under Appellate Rule 4, the court only has jurisdiction over an appeal if a notice of appeal is timely filed – that is, within 14 days, extendable by up to 30 days on a motion to the circuit. Vilar’s request – that the appeal be dismissed, but with jurisdiction to be revived more than 30 days later – is inconsistent with this rule.

There is, however, an “effective equivalent.” The circuit could stay adjudication of the appeal pending the outcome of the 2255. This would avoid the jurisdictional constraints of Rule 4, and the circuit has done it before. The court accordingly construed Vilar’s motion to dismiss and reinstate as a motion for a stay, but then denied the motion. The court found no compelling justification for the stay in Vilar’s claim of judicial economy, particularly since Vilar “has not shown that his § 2255 motion is more likely to succeed than his direct appeal.” While it is true that handling the 2255 first would allow consolidation of that appeal and the direct appeal, “few if any judicial resources would be conserved.” The consolidated appeals would “entail different standards, different records, and separate analyses,” and “simultaneous adjudication of interrelated issues using different standards and different records would increase the complexity of the consolidated appeal.”

Nor did fairness concerns require granting the stay. The court rejected Vilar’s claim that the trial attorney’s ineffectiveness in developing the factual record below would prejudice the direct appeal, since any “additional fact-finding done pursuant to a habeas proceedings” would not be part of the record” on which the direct appeal would be decided.

Moreover, it would be unfair to Tanaka and the government to grant the stay. Either Tanaka’s appeal would be delayed or, if it were severed from Vilar’s, the government would have to litigate separately two identical appeals.

The court accordingly denied the motion, but granted Vilar a six-month extension of time, finding that nether the government nor Tanaka would be unduly prejudiced by the delay.