Carranza v. United States, 794 F.3d 237

Carranza pled guilty to conspiracy to distribute cocaine in July 2009; district court sentenced him to 151 months and entered judgment in November 2009.
Carranza filed a timely pro se notice of appeal; appellate counsel Edens was designated but failed to file the appellate brief and appendix.
Court dismissed Carranza’s direct appeal in June 2010 for failure to comply with scheduling orders; mandate issued December 2010.
Carranza filed a pro se § 2255 motion in district court during the pendency of his direct appeal, asserting ineffective assistance in sentencing; district court denied in April 2011.
In January 2012, Carranza sought leave to file a successive § 2255 motion asserting ineffective assistance for failure to perfect the direct appeal; the motion sought reinstatement of the direct appeal and access-to-courts claims.
Court holds the proposed motion is not second or successive because it seeks only reinstatement of direct-appeal rights, not a challenge to the legality of the sentence; case is transferred for filing in district court; remedy is recall of the mandate and reinstatement of the direct appeal if granted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the motion is “second or successive” under AEDPA §2255(h).	Carranza argues the motion seeks reinstatement of direct-appeal rights.	The Government argues the motion follows a chronology that could render it successive and must meet §2255(h).	Not second or successive; reinstatement of direct appeal fell outside ‘attack on the legality of the sentence.’
Whether reinstatement of direct-appeal rights is a permissible §2255 motion distinct from challenging the sentence.	Carranza claims his claims pertain to appellate access and ineffective assistance related to appealing.	Government contends §2255 remedies require direct attack on the conviction; reinstatement is not such an attack.	Permissible; reinstatement restores procedural posture without attacking sentence; not a duplicative challenge to the conviction.
What remedy if the motion is granted and the direct appeal is reinstated?	N/A	N/A	Remedy would be recall of mandate and reinstatement of the original direct appeal; would not disturb district court judgment.

Urinyi v. United States, 607 F.3d 318 (2d Cir. 2010) (not a second attack when initial motion reinstated direct appeal; subsequent motion attacks conviction)
Vu v. United States, 648 F.3d 111 (2d Cir. 2011) (initial §2255 seeking reinstatement of direct appeal not a challenge to legality of sentence)
Vasquez v. Parrott, 318 F.3d 387 (2d Cir. 2003) (precedent on abuse of the writ and successive petitions)
Campusano v. United States, 442 F.3d 770 (2d Cir. 2006) (ineffective-assistance for losing direct appeal; recall of mandate and reinstatement remedy)
McHale v. United States, 175 F.3d 115 (2d Cir. 1999) (failure to file appeal constitutes ineffective assistance; recall of mandate remedy)
Wall v. United States, 619 F.3d 152 (2d Cir. 2010) (determines procedural posture for collateral review beyond direct appeal)
Roe v. Flores-Ortega, 528 U.S. 470 (U.S. 2000) (ineffective assistance related to failure to file or perfect an appeal)
United States v. Outen, 286 F.3d 622 (2d Cir. 2002) (policies on direct appeals during §2255 proceedings)
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (U.S. 1993) ((not cited in text; included as placeholder for completeness))