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Wednesday, February 21st, 2024

Where a §2255 petition alleges that counsel failed to file a requested notice of appeal, the district court may not summarily dismiss but must undertake a factual inquiry.

In United States v. Thomas, No. 22-2026 (February 21, 2024), the Circuit (Jacobs, Sack, and Nardini) reversed, in a per curiam opinion, the district court’s summary denial of a §2255 petition alleging that counsel failed to file a notice of appeal as petitioner requested. Thomas swore in his petition that he told his lawyer to file the notice of appeal. The district court held that this allegation was insufficient because Thomas did not include details, such as when and how the request was made, whether there were discussions about it, and whether he was aware of the deadlines for an appeal. The Circuit held that the district court’s summary denial was an abuse of discretion. The Court reaffirmed its precedent in United States v. Campuzano, 442 F.3d 770, 776 (2d Cir. 2006), that a factual inquiry is required “when a defendant claims that his attorney failed to file …

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Categories: ineffective assistance of counsel, Notice of Appeal

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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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