945 F.3d 677
2d Cir.2019Background
- Wright was convicted (Nov 2011) of two counts of assault on a law‑enforcement officer and sentenced on May 2, 2014 to 240 months’ imprisonment.
- At sentencing Wright stated he intended to appeal and the district court asked trial counsel Roberts to file a notice of appeal; counsel did not file one.
- Wright filed a pro se notice of appeal to the Second Circuit on August 25, 2017—more than three years after sentencing—and the Government moved to dismiss as untimely.
- Wright argued counsel’s failure to file the requested appeal was per se ineffective assistance (citing Garza) and sought a Fuller remand to the district court to vacate/enter a new judgment allowing a timely direct appeal.
- The Second Circuit held Fuller was not clearly applicable because it was uncertain whether a §2255 petition filed on August 25, 2017 would have been timely under AEDPA; the court dismissed the appeal and remanded to the district court to convert Wright’s notice of appeal into a §2255 petition (with Wright’s consent) and to adjudicate timeliness under §2255(f)(4) and any equitable tolling argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Fuller remand is available where counsel failed to file a requested notice of appeal | Wright: counsel’s failure was per se ineffective; Fuller remand should be used to enter new judgment enabling a timely direct appeal | Government: appeal untimely; Fuller not appropriate because AEDPA timeliness under §2255 is unclear after long delay | Fuller remand not appropriate on this record; remand to district court to convert notice to §2255 and decide timeliness under §2255(f)(4)/equitable tolling |
| Whether a §2255 petition filed Aug 25, 2017 would be timely under AEDPA §2255(f)(1) or (f)(4) | Wright: his ineffective‑assistance claim entitles him to relief and should be considered timely for purposes of relief | Government: §2255(f)(1) expired May 22, 2015; timeliness under (f)(4) or equitable tolling is not established on this record | §2255(f)(1) would be untimely; (f)(4) and equitable‑tolling questions are fact specific and must be resolved by the district court |
| Whether the Court may convert Wright’s untimely notice of appeal into a §2255 motion without prejudice | Wright: conversion will allow adjudication of his ineffective‑assistance claim and preserve remedies | Government: conversion should respect AEDPA limits and defendant’s rights; prior precedent cautions about recharacterization without consent | Court instructed district court to solicit Wright’s consent, convert the notice to a §2255 petition, and then assess timeliness and tolling; warned withdrawal may be unwise |
Key Cases Cited
- United States v. Fuller, 332 F.3d 60 (2d Cir. 2003) (authorized remand to vacate and reenter judgment when counsel failed to file a requested appeal and §2255 relief was plainly available)
- Wims v. United States, 225 F.3d 186 (2d Cir. 2000) (§2255(f)(4) can "reset" limitations period when petitioner discovers counsel failed to file an appeal)
- Garza v. Idaho, 139 S. Ct. 738 (U.S. 2019) (presumption of prejudice where counsel’s deficient performance deprived defendant of an appeal he would have taken)
- Massaro v. United States, 538 U.S. 500 (U.S. 2003) (ineffective‑assistance claims generally resolved in §2255 proceedings rather than on direct appeal)
- Holland v. Florida, 560 U.S. 631 (U.S. 2010) (equitable tolling available where petitioner shows diligence and extraordinary circumstances)
- Maples v. Thomas, 565 U.S. 266 (U.S. 2012) (attorney abandonment can constitute extraordinary circumstances for tolling)
- United States v. Frias, 521 F.3d 229 (2d Cir. 2008) (FRAP 4(b) is not jurisdictional though mandatory when timely objected to)