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Tuesday, July 19th, 2016

Filing a Notice of Appeal: Just Do It!

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 § …

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