The Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A, entitles financially eligible defendants to the assistance of counsel when petitioning for a writ of certiorari. In Nnebe v. United States, we held that the “unusual remedy” of recalling a mandate is available when counsel appointed under the CJA interferes with that right by “promis[ing] to file a certiorari petition, but failing] to do so.”
This case requires us to determine whether the same remedy is available when CJA counsel fails to timely inform a defendant that his conviction has been affirmed and thereby deprives the defendant of an opportunity to petition for rehearing or rehearing en bane. We conclude that it
BACKGROUND
On December 1, 2011, a jury convicted Taylor of one count of conspiracy to distribute crack cocaine in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846 and one count of distributing crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). The district court sentenced Taylor to 84 months’ imprisonment. Taylor, with the assistance of counsel appointed under the CJA, timely appealed. On October 21, 2013, we affirmed his conviction and sentence by summary order. See United States v. Fitzgerald,
On January 7, 2014, less than three months later, Taylor filed a pro se motion under 28 U.S.C. § 2255 to vacate his conviction and sentence. Of particular relevance here, Taylor argued that his counsel provided ineffective assistance of counsel by failing to timely notify Taylor that his appeal had been decided, which had the effect of depriving Taylor of an opportunity to petition for rehearing and rehearing en banc. Taylor alleged that he first learned that his appeal had been decided from a “paralegal service” a month after the decision had been rendered and, thus, past the fourteen-day period during which a petition may be filed. See Fed. R.App. P. 35(c) & 40(a).
The district court denied Taylor’s motion. The court assumed, arguendo, that the Sixth Amendment right to effective assistance of counsel applies to petitions for rehearing and rehearing en banc, but held that Taylor had not established that he suffered any prejudice from his inability to petition since “it is highly unlikely that a petition for rehearing or rehearing en banc would have been granted” and Taylor had “identified no issue that the Second Circuit panel incorrectly decided.” App. at 10. Given this disposition, the United States District Court for the Southern District of New York (Paul G. Gardephe, Judge) declined to hold an evidentiary hearing to allow Taylor to offer proof of his allegations. The district court also denied Taylor a certificate of appealability.
Taylor then moved pro se in this Court for a certificate of appealability. We granted the motion with respect to a single issue: “whether Appellant is entitled to relief pursuant to Nnebe v. United States,
DISCUSSION
On appeal, and now with the assistance of counsel, Taylor urges us to construe his appeal of the district court’s judgment as a motion to recall the mandate in his direct appeal and to vacate our original judgment and reenter judgment. Doing so would allow Taylor an opportunity to timely seek rehearing.
We resolve Taylor’s request for relief in three steps. The first two are of general application. First, we determine that the CJA affords financially eligible defendants the right to representation when petitioning for rehearing and rehearing en banc. Second, we conclude that the remedy of
I.
We begin by addressing the scope of representation under the CJA. “[T]he CJA establishes the broad institutional framework for appointing counsel for a criminal defendant who is financially unable to obtain representation.” United States v. Parker,
It is now settled that these provisions guarantee eligible defendants the right to representation when seeking a writ of cer-tiorari from the Supreme Court. The Supreme Court has twice granted late-filed pro se petitions for certiorari and remanded for further proceedings when a defendant’s CJA counsel, without adequate justification, failed to assist in the filing of a timely petition. See Wilkins v. United States,
In the event of a decision adverse to the CJA client in this Court, the CJA attorney shall promptly transmit to the CJA client a copy of the Court’s decision, advise the CJA client in writing of the right to file a petition for writ of certio-rari with the United States Supreme Court, inform the CJA client of the CJA attorney’s opinion as to the merit and likelihood of success in obtaining such a writ, and if requested to do so, petition the Supreme Court for certiorari. Despite a CJA client’s directive to file a writ, if a CJA attorney has reasonable grounds to believe that a petition for certiorari would have no likelihood of success, the CJA attorney may file with this Court a motion to be relieved and serve a copy on the CJA client and other counsel within ten days of the filing of an adverse decision of this Court. If the Court relieves the CJA attorney, he or she shall, within 48 hours after such motion is granted, so advise the CJA client in writing and inform the CJA client concerning the procedures for filing a petition for a writ of certiorari pro se. ‘
Second Cir. Local R., Appendix Part A: Amended Plan to Implement the Criminal
We have never before considered, however, whether the CJA also entitles defendants to representation when seeking rehearing and rehearing en banc. We now conclude that it does. Although the CJA does not explicitly address petitions for rehearing or rehearing en banc, it provides, as noted, that eligible defendants “shall be represented ... through appeal.” 18 U.S.C. § 3006A(c). We retain jurisdiction—and an appeal does not conclude— until the mandate issues, see United States v. Rodgers,
Of course, this does not mean that CJA counsel must always file a petition for rehearing or rehearing en banc whenever a defendant requests. Just as counsel may move to be relieved from filing a frivolous direct appeal, Anders v. California,
In cases where counsel does find it necessary to move to withdraw, counsel should do so in a timely fashion and also file on the defendant’s behalf a motion for an extension of time to petition for rehearing or rehearing en banc. This will ensure that the time it takes counsel to withdraw does not inadvertently deprive the defendant of his right to file a pro se petition.
Our view that the CJA affords defendants the right to assistance with filing non-frivolous petitions and to notice of the opportunity to petition pro se comports with that of every court of appeals to address this question. Two courts of appeals have incorporated this understanding of the CJA into their plans implementing the statute. See Revision of Part V of the Eighth Circuit Plan to Implement the Criminal Justice Act of 1964 (Apr. 15, 2015); Eleventh Circuit Plan Under the Criminal Justice Act § (f)(5) (Dec.2009).
To summarize, we hold that the CJA entitles defendants to representation in filing non-frivolous petitions for rehearing and rehearing en banc. Where counsel determines that a petition would be frivolous, counsel should inform the client of the opportunity to petition pro se, move to withdraw, and at the same time, move on behalf of the CJA client for an extension of time to file a pro se petition.
II.
We next consider whether any remedy is available to defendants whose CJA counsel fail to timely provide assistance with petitions for rehearing or rehearing en banc. When such a failure occurs, a defendant’s right to assistance may only be restored if we recall the mandate and reenter judgment to restart the clock for the time to file a timely petition. We now hold that this relief is available.
We possess “an inherent power to recall [a] mandate, subject to review for abuse of discretion.” Bottone v. United States,
As noted at the outset of this opinion, we found this exacting standard satisfied in Nnebe v. United States, which concerned similar allegations of a deprivation of the statutory right to assistance, albeit at the
When the case reached this Court, we declined to review the merits of the district court’s decision and instead construed Nnebe’s appeal as a motion to recall the mandate in his direct appeal. We recognized — and, indeed, the government did not dispute — that Nnebe’s counsel’s conduct violated the provision of our CJA Plan that incorporates the requirement that, when a client requests assistance seeking review in the Supreme Court, counsel must either file a petition for cer-tiorari on the client’s behalf or move to withdraw from the case if the petition would be frivolous. See id.; CJA Plan § IX.C (Dec. 12, 2007). In light of this violation and in order to make relief available, we determined that the appropriate remedy would be to “construe Nnebe’s appeal as a motion to recall the mandate and vacate our judgment so that a new one can be entered in order to afford him an opportunity to petition for certiorari.”
The result in Nnebe followed in large part the Supreme Court’s decision in Wilkins v. United States,
“The answer,” the Court explained, was “to be found in the Criminal Justice Act of 1964.” Id. The Court endorsed the view of the Solicitor General that, under the CJA, “a person whose federal conviction has been affirmed is entitled to a lawyer’s help in seeking certiorari.”
Heeding that advice here counsels that we make the remedy announced in Nnebe available when a CJA attorney fails to assist in the filing of a petition for rehearing or rehearing en banc. The same danger presented in Wilkins and Nnebe is presented here, namely, a violation of the CJA’s guarantee of representation. Hence, supplying the same remedy will advance our efforts to supervise court-appointed counsel and to ensure that the CJA’s aim of providing financially needy defendants with adequate representation is given effect. See Nnebe,
The government’s principal argument opposing this result is that we may not recall the mandate unless our CJA Plan has been violated. According to the government, the violation of our Plan “was critical to the holding in Nnebe.” Brief for the United States of America at 11. Thus, the government concludes, because our Plan imposes no explicit requirements on counsél with respect to petitions for rehearing or rehearing en bane, we cannot recall the mandate when a defendant complains that he has been deprived, without justification, of the statutory right to assistance with seeking rehearing.
We reject this interpretation of Nnebe. Nnebe did frame the question presented as what remedy is available when the CJA Plan had been violated, but nothing in the decision suggests that our holding hinged on there being a violation of the Plan in addition to a violation of the CJA statute itself. Indeed, as discussed, Nnebe relied heavily on Wilkins, which explained that the “answer” to what type of remedy should be supplied in these circumstances was to be “found” in the CJA.
Nor does anything in our case law on recalling the mandate require proof of a violation of our CJA Plan. Although we are reluctant to exercise our authority to recall the mandate, we have done so before to address similar failings in counsel, even when no specific court rule has been violated. See McHale,
Accordingly, we conclude that the mandate may be recalled when a defendant acts with diligence and offers proof that his CJA counsel failed to provide assistance filing a non-frivolous petition for rehearing or rehearing en banc or failed to timely move to withdraw and inform the defendant of the opportunity to petition pro se.
III.
We turn finally to whether Taylor has established that the mandate should be
We agree with the government that this deficiency precludes recalling the mandate at this stage. Because Taylor’s claim was rejected below on the ground that he had failed to demonstrate prejudice without any inquiry into whether his allegations are true, however, the appropriate course is to remand to allow the district court to make factual findings regarding whether Taylor’s counsel failed to timely inform Taylor of our decision affirming his conviction and sentence.
CONCLUSION
We reiterate that counsel appointed under the CJA must promptly advise their clients of our decisions, and we now make clear that, when those decisions are adverse, counsel must advise their clients of the opportunity not only to petition for certiorari, but also to petition for rehearing and rehearing en banc. Where a client requests that a petition for rehearing or rehearing en banc be filed, but counsel views the filing as frivolous, counsel should inform the client of the opportunity to petition pro se, move to withdraw, and, at the same time, file a motion for extension of time to petition so that the client may seek relief pro se. When this obligation is violated and a defendant acts diligently in seeking relief, the mandate may be re
In this case, Taylor has not yet had an opportunity to prove the truth of his allegation that his counsel failed to timely advise him of our decision affirming his conviction and thereby deprived Taylor of the right to petition for rehearing at all. Accordingly, we construe Taylor’s appeal as a motion to recall the mandate, but we decline to grant the motion at this time and instead remand for further proceedings. We emphasize that we offer no view as to the merits of Taylor’s allegations and leave that determination in the first instance to the district court, consistent with this opinion. After the district court makes the requisite factual findings, jurisdiction may be restored to this court by letter from either party, and the Clerk’s Office shall set a briefing schedule and in the interests of judicial economy send such proceeding to this panel for disposition without oral argument unless otherwise ordered.
Notes
. The Eight Circuit's plans is available at media.ca8.uscourts.gov/new-rules/coa/Plan_V_Revision.pdf, and the Eleventh Circuit’s is available at http://www.call. uscourts.gov/sites/defaul1/flles/courtdocs/clk/ RulesAddendum04DEC09 .pdf.
. We recognize that the Supreme Court has offered more specific guidance for recalling the mandate "where a federal court of appeals sua sponte recalls its mandate to revisit the merits of an earlier decision denying ha-beas corpus relief to a state prisoner.” See Calderon v. Thompson,
. Because Nnebe had been sentenced before the Supreme Court’s decision in United States v. Booker,
. Specifically, the Solicitor General’s interpretation relied on the section of the CJA providing that eligible defendants are entitled to representation "through appeal,” 18 U.S.C. § 3006A(c); the section providing that CJA defendants may seek certiorari "without prepayment of fees,” id. § 3006A(d)(7); and a section, not discussed above, that provides that, in habeas and revocation of parole proceedings, a district court has discretion to appoint counsel under the CJA, id. § 3006A(a)(2). See Wilkins,
. The Government seeks to distinguish Shaa-ban on the ground that the Seventh Circuit’s plan implementing the CJA "explicitly requires that counsel file a petition for rehearing if requested to do so by the client and there are reasonable grounds to do so.” Brief for the United States at 12. That is not so, though we do not fault the government for its' view. Shaaban did assert that the Seventh Circuit’s plan "explains that it is counsel’s duty to file a petition for rehearing if a defendant requests that counsel do so and there are reasonable grounds for such a petition.”
. In this particular case, we could also reject the government’s argument for the additional reason that Taylor has, in fact, alleged a violation of the CJA Plan. Our Plan requires that, "[i]n the event of a decision adverse to the CJA client in this Court, the CJA attorney shall promptly transmit to the CJA client a copy of the Court’s decision.” CJA Plan ¶ IX.C. If Taylor’s allegation that he never learned of our decision on his direct appeal until after the time to petition for rehearing is true, then Taylor’s counsel necessarily failed to comply with that instruction.
. We of course do not fault the district court for not holding an evidentiary hearing, as the possibility that Taylor may be entitled to relief for the reasons stated in this opinion was first raised in our order granting Taylor a certificate of appealability. Indeed, even had the district court considered the possibility that our mandate may be recalled, the district court itself would have been powerless to grant such relief. Thus, when faced in the future with a pro se motion under § 2255 that includes a defendant's claim that he has been deprived of his right under the CJA to assistance with petitioning for rehearing, rehearing en banc, or certiorari, the district court should stay its consideration of the § 2255 motion and direct the defendant to file a motion to recall the mandate in this Court. Additionally, in directing the defendant, the district court should explain that if the motion to recall the mandate is granted, the defendant must file a new § 2255 motion if his petition for rehearing, rehearing en banc, or certiorari is ultimately unsuccessful and a new judgment is entered against the defendant. Following this procedure will preserve the defendant’s ability to pursue any other claims contained in the original § 2255 motion.
. Counsel for Taylor in this appeal should continue to represent him on remand. See CJA Plan § IX.G.