Taylor v. United States
822 F.3d 84
2d Cir.2016Background
- Javel Taylor was convicted of federal drug offenses and sentenced to 84 months; he timely appealed with CJA-appointed counsel and this Court affirmed by summary order on October 21, 2013; the mandate issued November 14, 2013.
- Taylor claims his CJA counsel failed to timely inform him of the adverse appellate decision, so he lost the opportunity to file a petition for rehearing or rehearing en banc within the Rule 40 timeframe.
- Taylor filed a pro se §2255 motion less than three months after the opinion asserting ineffective assistance for failure to notify; the district court denied relief on the ground Taylor had not shown prejudice and declined an evidentiary hearing.
- This Court granted a certificate of appealability on whether Taylor is entitled to relief under Nnebe v. United States for CJA counsel’s failure to notify, and appointed new CJA counsel for this limited appeal.
- The Second Circuit considered (1) whether the CJA covers assistance for rehearing/rehearing en banc, (2) whether recalling the mandate is an available remedy for CJA counsel’s failures, and (3) whether Taylor had proven entitlement to recall here.
- The Court held the CJA covers representation for rehearing/rehearing en banc and that recalling the mandate is available where CJA counsel fails to provide required assistance, but remanded for factual development because Taylor has not yet substantiated his allegations below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the CJA entitle indigent defendants to counsel assistance for petitions for rehearing and rehearing en banc? | Taylor: right to counsel "through appeal" includes rehearing processes. | Government: CJA and Plan do not explicitly address rehearing; thus no entitlement. | Held: Yes. "Through appeal" and Rule timing show CJA counsel must assist or notify re: rehearing and rehearing en banc. |
| Is recalling the mandate an available remedy when CJA counsel fails to provide required assistance with rehearing petitions? | Taylor: remedy used in Nnebe/Wilkins should apply to restore opportunity to seek rehearing. | Government: remedy should require a violation of the Circuit’s CJA Plan specifically. | Held: Yes. Court may recall mandate where CJA assistance was withheld; violation of Plan not required. |
| Must a defendant show prejudice before the mandate can be recalled? | Taylor: prejudicial showing not required; need only show counsel failed to provide assistance and defendant acted diligently. | Government: recall should require proof of prejudice and/or Plan violation. | Held: No prejudice requirement; but recalling is extraordinary and requires diligence and proof of counsel’s failure. |
| Has Taylor proved entitlement to recall the mandate on the record now? | Taylor: acted diligently and alleges he was not timely notified. | Government: allegations are unsupported; district court correctly denied relief without an evidentiary finding. | Held: Taylor has not yet substantiated allegations; remand for factfinding and evidentiary hearing. |
Key Cases Cited
- Nnebe v. United States, 534 F.3d 87 (2d Cir. 2008) (recalling mandate available where CJA counsel failed to file certiorari petition)
- Wilkins v. United States, 441 U.S. 468 (1979) (Supreme Court endorsed CJA-based relief where appointed counsel failed to file certiorari)
- Sotelo v. United States, 474 U.S. 806 (1985) (per curiam) (Supreme Court remanded late pro se certiorari where appointed counsel failed to act)
- Bottone v. United States, 350 F.3d 59 (2d Cir. 2003) (court has inherent power to recall mandate; review for abuse of discretion)
- McHale v. United States, 175 F.3d 115 (2d Cir. 1999) (discussing limits on requiring defendant to show merit of a hypothetical appeal)