655 F. App'x 35
2d Cir.2016Background
- Defendant Anthony Diaz filed a notice of appeal on December 7, 2015; the Government moved to dismiss it as untimely on December 11.
- Diaz conceded the notice was untimely but argued counsel had been asked to file an appeal and failed to do so, requesting the court hear the appeal in the interests of justice.
- In Fuller, this Court remanded for entry of a new judgment where the record showed a defendant requested counsel to file an appeal and counsel failed to do so; Moreno-Rivera later limited Fuller where ineffective-assistance facts were not clearly established on the record.
- Diaz and the Government agreed that, absent equitable tolling, a §2255 petition filed after dismissal would now be time-barred under AEDPA.
- The panel declined to apply the Fuller remedy because Moreno-Rivera forecloses remand where the record does not clearly establish counsel’s constitutional ineffectiveness.
- The Court remanded to the district court to convert Diaz’s notice (and his supplemental filing alleging counsel’s failure) into a §2255 habeas petition, but only after giving Diaz the opportunity to withdraw the notice rather than consent to recharacterization.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal | Diaz conceded appeal untimely but sought equitable relief | Government: dismiss as untimely | Appeal dismissed as untimely under Fed. R. App. P. 4(b) and precedent (Frias) |
| Availability of Fuller remand remedy | Diaz: remand to district court to enter new judgment (Fuller) | Government: Fuller remand not appropriate under Moreno-Rivera | Fuller remedy unavailable because Moreno-Rivera prevents remand absent clear record of counsel’s ineffectiveness |
| Proper forum to raise counsel-failure claim | Diaz: seek relief via reinstated direct appeal or Fuller remedy | Government: claim should proceed via §2255; but AEDPA limitations may bar a later §2255 | Court: dismissal of appeal and remand for district-court §2255 proceedings is the appropriate route when Fuller is inapplicable |
| Conversion of appeal to §2255 petition without consent | Diaz requested conversion to preserve habeas timeliness | Government noted Adams requires defendant consent before conversion | Court ordered remand to district court to convert the notice into a §2255 petition only after giving Diaz opportunity to withdraw rather than have it recharacterized (per Adams) |
Key Cases Cited
- United States v. Fuller, 332 F.3d 60 (2d Cir. 2003) (remand to enter new judgment when record clearly shows requested appeal was not filed)
- United States v. Moreno-Rivera, 472 F.3d 49 (2d Cir. 2006) (limits Fuller where the record does not clearly establish counsel’s constitutional ineffectiveness)
- Campusano v. United States, 442 F.3d 770 (2d Cir. 2006) (§2255 is proper vehicle for claim that counsel failed to file a requested appeal)
- Urinyi v. United States, 607 F.3d 318 (2d Cir. 2010) (a §2255 petition seeking only reinstatement of a direct appeal does not render a later petition second or successive)
- Adams v. United States, 155 F.3d 582 (2d Cir. 1998) (court may recharacterize a pro se filing as a §2255 petition only after warning and obtaining the defendant’s consent because conversion can prejudice habeas rights)
- United States v. Frias, 521 F.3d 229 (2d Cir. 2008) (timely-appeal requirements under Fed. R. App. P. 4(b))