Ahumada v. United States
Decision Date | 22 April 2021 |
Docket Number | No. 19-3632,19-3632 |
Citation | 994 F.3d 958 |
Parties | Charles AHUMADA, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee |
Court | U.S. Court of Appeals — Eighth Circuit |
Charles Ahumada, Pro Se.
Steven R. Morrison, Grand Forks, ND, Petitioner - Appellant.
Rick Lee Volk, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of North Dakota, Bismarck, ND, for Respondent - Appellee.
Before COLLOTON, BENTON, and KELLY, Circuit Judges.
Charles Ahumada was convicted of two drug crimes. Under the Criminal Justice Act (CJA), this court appointed Kent M. Morrow to represent him on appeal. This court affirmed. United States v. Ahumada , 858 F.3d 1138, 1139 (8th Cir. 2017). This court alerted Morrow to the 14-day deadline for petitions for rehearing. Morrow failed to notify Ahumada until after the deadline passed. Morrow did not explain the rehearing process. Ahumada filed a pro se motion to extend the filing deadline. This court granted the motion and recalled the mandate. Ahumada submitted his petition, after the new deadline. This court denied it.
Ahumada filed a pro se motion to vacate under 28 U.S.C. § 2255. He claimed Morrow abandoned him by failing to communicate and provide requested documents. The district court1 denied his motion but issued a certificate of appealability on Ahumada's right to counsel for a petition for rehearing. United States v. Ahumada , 1:15-cr-00044-DLH-2, Docket No. 133, at 12-18 (D.N.D. Nov. 20, 2019).
"This court reviews de novo the district court's legal determinations, and for clear error its findings of fact." Dilang Dat v. United States , 983 F.3d 1045, 1047 (8th Cir. 2020).
"[T]he Fifth Amendment due process clause governs the right to counsel for appellate proceedings." Steele v. United States , 518 F.3d 986, 988 (8th Cir. 2008), citing Ross v. Moffitt , 417 U.S. 600, 610-11, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). A criminal defendant has a constitutional right to counsel on the first direct appeal. Id. , citing Douglas v. California , 372 U.S. 353, 357-58, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). This "encompasses the right to effective assistance of counsel." Id. , citing Evitts v. Lucey , 469 U.S. 387, 396-400, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).
Distinct from a first direct appeal, a petition for rehearing is a discretionary appeal. See Fed. R. App. P. 40(a)(4) . "En banc review, like the Supreme Court's certiorari jurisdiction, is discretionary." United States v. Dunlap , 936 F.3d 821, 824 (8th Cir. 2019). See generally Jackson v. Johnson , 217 F.3d 360, 364-65 (5th Cir. 2000) ( ); United States v. Coney , 120 F.3d 26, 28 (3d Cir. 1997) (same); McNeal v. United States , 54 F.3d 776, 1995 WL 290233, *2 (6th Cir. 1995) (unpublished table order) (same). Cf. Nichols v. United States , 563 F.3d 240, 252 (6th Cir. 2009) ( ).
There is no constitutional right to counsel for discretionary appeals. Austin v. United States , 513 U.S. 5, 8, 115 S.Ct. 380, 130 L.Ed.2d 219 (1994) (per curiam), citing Ross , 417 U.S. at 616-17, 94 S.Ct. 2437. A defendant without a constitutional right to counsel "cannot be deprived of the effective assistance of counsel." Steele , 518 F.3d at 988 (, )quoting Wainwright v. Torna , 455 U.S. 586, 587-88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (internal quotations omitted). Because Ahumada has no constitutional right to rehearing counsel, he cannot claim ineffective assistance of counsel.
He argues the CJA, this circuit's CJA plan, or Federal Rule of Criminal Procedure 44(a) grant the right to effective assistance of counsel for petitions for rehearing. See 18 U.S.C. § 3006A(c) ( ); Fed. R. Crim. P. 44(a) ( ); REVISION OF PART V OF THE EIGHTH CIRCUIT PLAN TO IMPLEMENT THE CRIMINAL JUSTICE ACT OF 1964, https://ecf.ca8.uscourts.gov/newrules/coa/Plan_V_Revision.pdf (last visited Apr. 19, 2021) (counsel "must" file petition for rehearing if defendant requests it and there are reasonable grounds to do so). While these "may well embody the congressional judgment as to what representation to afford defendants, [they are] not a statement of what the Constitution requires." See Steele , 518 F.3d at 988 ; Walker v. United States , 810 F.3d 568, 576 (8th Cir. 2016) (following Steele ). Cf. Pennsylvania v. Finley , 481 U.S. 551, 556, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) () .
"The alleged breach of the provisions of our [CJA] plan and Rule 44(a) did not deprive [the defendant] of due process of law and did not give rise to a claim for ineffective representation of counsel." Steele , 518 F.3d at 988. A constitutional right is required before Ahumada can be deprived of ineffective representation of counsel. See id. Even assuming there was a breach of the statute, the CJA, it does not give rise to a claim for ineffective representation of counsel. Compare Jackson , 217 F.3d at 364-65 ( ); McNeal , 54 F.3d at 776, *2 (same), with Taylor v. United States , 822 F.3d 84, 90 (2d Cir. 2016) ( ); United States v. Howell , 37 F.3d 1207, 1209 (7th Cir. 1994) (, )citing Wilkins v. United States , 441 U.S. 468, 470, 99 S.Ct. 1829, 60 L.Ed.2d 365 (1979) (per curiam) ( ); Doherty v. United States , 404 U.S. 28, 29, 92 S.Ct. 175, 30 L.Ed.2d 209 (1971) (per curiam) ( ); Schreiner v. United States...
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