Friday, May 13th, 2016


 Today’s published decision,  JAVEL TAYLOR  v. UNITED  STATES No. 15-827  (Opinion of May 13, 2016)(Katzmann, Chief Judge, Cabranes, Circuit Judge, and Kaplan, District Judge), is addressed to how appointed appellate counsel should advise clients about  seeking rehearing and rehearing en banc from an adverse decision in their case.  Addressing  an issue of first impression for this Circuit, the Court holds that,  under the Criminal Justice Act (“CJA”), 18 U.S.C. §3006A,  indigent defendants have the right to the assistance of counsel in filing petitions for rehearing and for rehearing en banc with the Circuit.  And this right triggers a set of obligations for CJA counsel on appeal.

The case arises from a pro se  petition, under 28 U.S.C.§2255, where Javel Taylor alleged that he did not learn of the Circuit’s decision affirming his conviction and (84-month) sentence, until one month after the decision, and was thereby denied the right to seek rehearing in the Circuit.  The district court denied Taylor’s §2255 petition on the grounds of prejudice — it was highly unlikely Taylor would have gotten rehearing, and Taylor had not identified any issue the panel decided incorrectly.

The Circuit granted a certificate of appealability (“COA”) and set forth these directives for CJA counsel to follow. It “reiterate[d] that counsel appointed under the CJA must promptly advise their clients of our decisions[.]” Op. at 24. And when decisions are adverse to a client, CJA counsel must advise the client of the opportunity “not only to petition for certiorari, but also to petition for rehearing and rehearing en banc” (Op. at 24) —  something that must be done within 14 days of the decision, unless the time is extended.

In addition, when the client requests that a petition for  rehearing or rehearing en banc be filed, “but counsel views the filing as frivolous,” counsel must  make a motion to the Circuit to be “relieved from filing a frivolous petition for rehearing or rehearing en banc.” Op. at 10,  24.  In filing a motion to withdraw from the obligation to file a rehearing petition, “counsel should [1]  do so in a timely fashion and [2] also file on the defendant’s behalf a motion for an extension of time to petition for rehearing or rehearing en banc” so the client can seek relief pro se.  Op. at 10. In addition,  CJA counsel also must (3)  give the client notice of the procedures for filing a petition “pro se,”  and tell the client that the  pro se petition will “receive[] the protection of the court’s independent determination of whether additional proceedings would be frivolous.” Op. at 10, 24.

  1. Factual background.

Javel Taylor had CJA counsel when he appealed his conviction, and resulting sentence, for distributing and conspiring to distribute crack cocaine.  The Circuit affirmed his conviction in October 2013, issuing its mandate on November 14, 2013.  But less than three months later (Jan. 7, 2014), Taylor filed a §2255 motion, arguing that appellate counsel was ineffective for failing to notify him that his appeal had been decided, “which had the effect of depriving Taylor of an opportunity to petition for rehearing en banc.”Op. at 4. According to Taylor, he did not learn of the decision until “a month after the decision had been rendered,”  and he learned it “from a ‘paralegal service,’” not from  his appellate counsel. And when he learned it, he was already beyond the 14-day period for filing rehearing petitions. Op. at 4 (citing Fed.R.App.P. 35(c) & 40(a)).  Nota bene : The lawyer on the instant (second) Taylor appeal was not the lawyer in Taylor’s first appeal; the Circuit appointed “new CJA counsel to represent Taylor in this limited appeal.” Op. at 5.

The district court denied the §2255 motion on the grounds that Taylor had not shown any  prejudice from his inability to file a petition for rehearing: a rehearing in his case was “‘highly unlikely,’” and he had “‘identified no issue that the Second Circuit panel incorrectly decided.’”  Op. at 4-5.

  1. Under the CJA, defendants are entitled to representation in filing non-frivolous petitions for rehearing and rehearing en banc.

The Circuit granted a COA to Taylor (after the district court had denied one).  The Court decided Taylor’s case on the grounds that appellate counsel’s conduct — as alleged by Taylor — violated the CJA. This is not a constitutional decision resting on the Sixth Amendment and its guarantee of effective assistance of counsel.

The Court noted that it is settled that the CJA gives indigent people the right to legal representation when seeking a writ of certiorari from the Supreme Court.  But the Court noted: “We have never before considered, however,  whether the CJA also entitles defendants to representation when seeking rehearing and rehearing en banc.”  Op. at 8. It added: “We now conclude that it does.” Op at 8-9.

The right to representation at rehearing is not mentioned in the CJA Act.  But the Act provides that defendants shall be represented “through appeal” (18 U.S.C.§3006A(c)).  And the Court concludes that “[i]t follows that the right to assistance ‘through appeal’ encompasses the right to assistance with seeking rehearing and rehearing en banc.” Op. at  9.  Further, given that the CJA gives a right to legal representation in petitioning for review in the Supreme Court, “it would be anomalous to find that defendants have no right to representation in the antecedent process of seeking rehearing in the court of appeals.” Id.

Thus,  CJA counsel must timely inform clients of their right to seek rehearing. And “[w]here counsel determines that a petition would be frivolous, counsel should inform the client of the opportunity to petition pro se, move to withdraw, and at the same time, move on behalf of the CJA client for an extension of time to file a pro se petition.” Op. at 12.

  1. Taylor’s remedy

When CJA counsel violates the obligation of providing assistance with petitions, or of advising clients about seeking rehearing, “and a defendant acts diligently in seeking relief,”  the Circuit’s mandate may be recalled so that the  Court’s judgment can be vacated and reentered to allow for a timely petition. Op. 24-25; id. at 13 (“a defendant’s right to assistance may only be restored if we recall the mandate and reenter judgment to restart the clock for the time to file a timely petition”).

Here, Taylor’s case was remanded for further proceedings. Because the district court had not made findings on the factual basis of  Taylor’s motion — but had simply rejected it on the grounds he had failed to show prejudice — the case was remanded for the district court to make findings about whether Taylor’s counsel had failed to inform him (timely or ever)  of the decision in Taylor’s prior appeal.

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