Submitted: May 21, 2019
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).
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.
Defendant-Appellant: Arza Feldman, Feldman & Feldman,
Uniondale, NY, for Andrew Wright.
Before: Livingston, Carney, Circuit Judges, Ramos, District
Ann Livingston, Circuit Judge.
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.
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.
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.
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
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).
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." 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.
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. ...