643 F. App'x 19
2d Cir.2016Background
- Monae Davis pleaded guilty (May 1, 2009) to a cocaine-base distribution conspiracy; statutory minimum sentence 240 months; sentenced to 240 months (Aug. 26, 2009).
- Davis appealed; counsel filed an Anders brief. This Court affirmed on July 6, 2011, noting plea-allocution errors that did not affect substantial rights and enforcing the appeal waiver; counsel was granted leave to withdraw.
- Counsel notified Davis by letter (postmarked July 11, 2011) that representation had concluded and included the summary order; Davis claims he did not receive the order until July 14, 2011.
- Davis mailed a pro se motion for extension (dated July 17, 2011, postmarked July 18, 2011) asking leave to file a pro se petition for rehearing; the court did not receive/recognize it as timely before the mandate issued (mandate eligible July 27, issued Aug. 2, 2011).
- The court ultimately denied leave to file the out-of-time pro se rehearing on Oct. 25, 2011. Davis later filed a § 2255 habeas petition that the district court dismissed as untimely (June 10, 2014), and denied reconsideration (Oct. 27, 2014).
- On appeal from the § 2255 dismissal, the Second Circuit recalled the mandate in Davis’s direct appeal, vacated that judgment, consolidated the appeals, construed Davis’s July 17, 2011 submission as a timely motion for panel rehearing (but denied it), and held that Davis’s § 2255 limitations period runs anew from the date the mandate recall renders his conviction non-final for certiorari purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court should recall the mandate in Davis’s direct appeal | Davis argued his timely pro se extension/rehearing motion was not considered due to events outside his control (delay in receiving counsel’s letter and court processing); thus mandate recall is warranted | Government did not dispute the Court’s authority to recall the mandate and opposed relief based on the merits of timeliness | Court recalled the mandate, vacated the prior judgment, and consolidated the appeals because extraordinary circumstances prevented Davis’s timely filing being recognized |
| Whether Davis’s July 17, 2011 submission qualifies as a timely motion for panel rehearing | Davis urged that his July 17 filing was a timely request for rehearing | Government contended the mandate had issued and the motion was untimely | Court construed the pro se July 17 submission as a timely motion for panel rehearing but denied the rehearing on the merits |
| Whether Davis’s § 2255 petition was time-barred | Davis argued the § 2255 limitations period should run from the date the mandate was recalled so his petition would be timely | Government argued the § 2255 petition was untimely under the original finality date of the conviction | Court held that because the mandate was recalled and rehearing motion resolved, the time to seek certiorari (90 days) begins anew and thus the § 2255 limitations period runs from that date; district court’s untimeliness dismissal was vacated |
| Whether pro se filings from an incarcerated litigant should be liberally construed | Davis relied on pro se liberal-construction principles to treat his filings as raising the strongest arguments | Government relied on docket/filing rules to argue deadlines were missed | Court applied Haines v. Kerner, construing pro se submissions to raise strongest arguments and giving Davis the benefit of that construction |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (standards for appointed counsel to withdraw on appeal when appeal is frivolous)
- Nnebe v. United States, 534 F.3d 87 (2d Cir. 2008) (recall of mandate appropriate when counsel’s negligence prevented timely certiorari)
- Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86 (2d Cir. 1996) (acknowledging appellate authority to recall mandate)
- Arzuaga v. Quiros, 781 F.3d 29 (2d Cir. 2015) (recalling mandate and reinstating appeal where timeliness dismissal was incorrect)
- Cohen v. Empire Blue Cross & Blue Shield, 142 F.3d 116 (2d Cir. 1998) (recall of mandate when a serious issue exists about timeliness dismissal)
- Clay v. United States, 537 U.S. 522 (2003) (finality for § 2255 limitations runs from the time to file certiorari)
- Haines v. Kerner, 404 U.S. 519 (1972) (pro se submissions liberally construed)