United States v. Moreno-Rivera, Docket No. 05-5760-cr (2d Cir. Dec. 22, 2006) (Cabranes, Sack, Hall) (per curiam): In United States v. Fuller, 332 F.3d 60 (2d Cir. 2003), the defendant claimed, as Moreno-Rivera does in this appeal, that his attorney failed to follow his explicit instruction to file a notice of appeal, resulting in the defendant’s failure to file a timely pro se notice of appeal. In Fuller, it was undisputed that Fuller timely asked his attorney to file the notice of appeal, and that the attorney failed to do so. As a result, the Circuit dismissed Fuller’s late appeal, but remanded the case to the district court with instructions to vacate the judgment and enter a new judgment, so that Fuller can timely appeal from the new judgment.
The Circuit denies the same remedy to Moreno-Rivera, however, and dismisses his late appeal. This is because, in contrast to Fuller, it is not entirely clear here why a timely notice of appeal was not filed. Specifically, it is not undisputed, as it was in Fuller, that trial counsel “failed to file a requested appeal,” which of course would establish Moreno-Rivera’s IAC claim. See Garcia v. United States, 278 F.3d 134, 137 (2d Cir. 2002). Rather, the Court concluded, “we cannot ascertain on this record whether Moreno-Rivera actually gave timely instructions to his trial counsel to file an appeal.” Op. 5-6. Thus, the usual rule applies: IAC claims requiring development or supplementation of the factual record should be heard not on direct appeal but in a collateral attack via § 2255. See Massaro v. United States, 538 U.S. 500, 504-05 (2003).