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United States v. Wright

United States Court of Appeals, Second Circuit

December 19, 2019

United States of America, Appellee,
v.
Andrew Wright, Defendant-Appellant.

          Submitted: May 21, 2019

         Defendant-Appellant Andrew Wright ("Wright") filed a notice of appeal with this Court more than three years after he was sentenced in the United States District Court for the Western District of New York (Siragusa, J.) to 240 months' imprisonment on two counts of assault on a law enforcement officer in violation of 18 U.S.C. § 111(a)(1), (b). He argues that he was given unconstitutionally ineffective assistance of counsel below, as his trial attorney failed to file a requested notice of appeal on his behalf. As a result, he requests a remand to the district court for entry of a new judgment from which he can take a direct appeal, under the auspices of United States v. Fuller, 332 F.3d 60, 65 (2d Cir. 2003). We conclude that Fuller does not apply here, as it is unclear whether Wright could have filed a timely petition for habeas relief in the district court at the time he filed his untimely notice of appeal with this Court. Given that answering this question requires further factual development, we DISMISS Wright's appeal as untimely, and REMAND to the district court with instructions to convert Wright's notice of appeal into a petition for habeas relief and assess whether such petition would be timely under 28 U.S.C. § 2255(f)(4).

          For Appellee: Monica J. Richards, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY, for United States of America.

          For Defendant-Appellant: Arza Feldman, Feldman & Feldman, Uniondale, NY, for Andrew Wright.

          Before: Livingston, Carney, Circuit Judges, Ramos, District Judge. [*]

          Debra Ann Livingston, Circuit Judge.

         This case arises from an untimely notice of appeal. Defendant-Appellant Andrew Wright ("Wright") was sentenced in the United States District Court for the Western District of New York (Siragusa, J.) on May 2, 2014, to 240 months' imprisonment, following a jury trial at which he was convicted of two counts of assault on a law enforcement officer in violation of 18 U.S.C. § 111(a)(1), (b). While the transcript of his sentencing hearing suggests that Wright wanted to appeal and that his trial attorney was told to file a notice of appeal on his behalf, no such notice was ever filed. On August 25, 2017, more than three years after he was sentenced, Wright filed a notice of appeal pro se with this Court.

         Wright argues that he undisputedly had unconstitutionally ineffective assistance of counsel below due to his trial attorney's failure to file a timely notice of appeal on his behalf. See Garza v. Idaho, 139 S.Ct. 738, 747 (2019) ("So long as a defendant can show that 'counsel's constitutionally deficient performance deprive[d him] of an appeal that he otherwise would have taken,' courts are to 'presum[e] prejudice with no further showing from the defendant of the merits of his underlying claims.'" (quoting Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000) (alterations in original))). For that reason, Wright contends that under this Court's precedent in United States v. Fuller, 332 F.3d 60, 65 (2d Cir. 2003), he is entitled to a remand to the district court for entry of a new judgment from which he can take a timely direct appeal.

         We disagree with Wright that Fuller can be applied here, given that it is unclear, at best, whether a petition for habeas corpus relief under 28 U.S.C. § 2255 filed on August 25, 2017, the date of his notice of appeal, would have been timely. As such, a Fuller remand, with no further analysis of Wright's actions during the three years between his sentencing and attempt to appeal, would circumvent and, indeed, upend Congress's provisions permitting timely but limiting untimely post-conviction petitions pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). Nevertheless, we remand Wright's case to the district court with instructions to convert his untimely notice of appeal into a habeas petition and for consideration of whether his petition is timely under § 2255(f)(4), either with or without application of equitable tolling.

         BACKGROUND

         I. Factual Background[1]

         In May 2010, while Wright was being held at Buffalo Federal Detention Center, he ran away from several "contract detention officers" on a "shakedown team," i.e., a team conducting random cell searches. Def.-App. Br. 5. After observing him run away, two officers-Christopher Cichocki and Matthew Irons-decided they should search Wright's cell. They observed him leaving his cell "holding a thermal shirt in his left hand." Id. When they approached, he punched the two officers before being wrestled to the ground. Both officers suffered injuries and were treated by medical staff either at the detention center (Irons) or off its grounds (Cichocki).

         II. Procedural History

         A criminal complaint was filed against Wright in the United States District Court for the Western District of New York on June 7, 2010. Wright pled not guilty, and following a two-day trial in November 2011 the jury convicted him on both counts of assault on a law enforcement officer, in violation of 18 U.S.C. § 111(a), (b).

         On May 2, 2014, Wright appeared before the district court for sentencing. Although his lawyers had attempted to review his Pre-Sentence Report ("PSR") with him, he declined to read it and explicitly affirmed that denial to the district court, saying he was "not worried about the sentence."[2] Appendix ("App'x") 40. After reviewing the PSR and the sentencing factors under 18 U.S.C. § 3553, the district court sentenced Wright to two concurrent terms of 240 months' imprisonment-a sentence within the range the district court calculated under the United States Sentencing Guidelines. Wright was also ordered to pay mandatory special assessments totaling $200, and fines totaling $1, 000.

         After pronouncing Wright's sentence, the district court asked Wright if he had any questions. Wright said that he would not be able to afford his lawyer, Richard M. Roberts ("Roberts"), at the next stage of the proceedings, but that he was "going to appeal this case." App'x 51. The district court explained the process of attorney withdrawal and how Wright could get new counsel from this Court on appeal. The docket entry detailing the sentencing proceeding reflects that the district court granted Roberts's "oral application to withdraw as defendant's counsel for the appeal." No. 10-cr-6166 (W.D.N.Y. May 2, 2014), ECF No. 72. ...


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