United States v. Owen, No. 07-4966-cr (2d Cir. January 9, 2009)(Feinberg, Cabranes, Hall, CJJ)
This decision addresses one of the procedural complexities that can arise when a defendant changes counsel on appeal while post-verdict motions are pending in the trial court.
Lance Owen was convicted of a drug offense in the district court. He made a Rule 33 motion that raised ineffective assistance of counsel and newly discovered evidence claims. The court granted the motion based on the newly discovered evidence claim – without addressing Owen’s other claims – but the circuit reversed. United States v. Owen, 500 F.3d 83 (2d Cir. 2007). In a footnote, however, that opinion suggested that Owen’s trial counsel might have been ineffective. After the opinion was filed, but before the mandate issued, the district court began proceedings to rule on the ineffectiveness claim.
While those proceedings were pending, the mandate issued, and Owen filed a “protective” notice of appeal of his underlying conviction, which had the effect of putting a halt to the district court proceedings. He then moved for a remand in the circuit so that the district court proceedings could resume, but did not specifically note that the proceedings arose from the Rule 33 motion. A motions panel denied the motion, and the parties submitted merits briefs on the appeal.
This panel, however, concluded that the “protective” notice of appeal had “not yet become effective” because the issuance of the mandate restored the district court’s jurisdiction over the remaining claims in the Rule 33 motion. “Where, as here, the … order that granted a Rule 33 motion on one of the grounds presented has been vacated solely on that ground – and the other grounds have not been addressed – a notice of appeal is not ‘effective.’”
Thus, a “protective” notice of appeal is to be held in abeyance pending the district court’s resolution of a Rule 33 motion, and will be come effective when the lower court disposes of the last remaining motion.