Bonneau v. U.S.

• Decision Date: 03 December 1991
• Docket Number: No. 91-1584,91-1584
• Citation: 961 F.2d 17
• Parties: Dennis BONNEAU, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 17

961 F.2d 17

Dennis BONNEAU, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 91-1584.

United States Court of Appeals First Circuit.

Heard Dec. 3, 1991.

Decided April 6, 1992.

Pamela A. Wilk with whom Peter Goldberger and Law Offices of Alan Ellis, P.C., Philadelphia, Pa., were on brief, for petitioner, appellant.

Dina Michael Chaitowitz, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for respondent, appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

BOWNES, Senior Circuit Judge.

This is an appeal from the denial by the district court of movant's § 2255 motion for relief. ¹ The only issue is whether appellant, Dennis Bonneau, who lost his right to a direct appeal of his conviction and sentence through the dereliction of his counsel, is entitled to a new appeal without first showing that there is a meritorious appellate issue. We hold that he is.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

Appellant was found guilty on June 3, 1987, by a jury on one count of conspiring to distribute cocaine, on three counts of aiding and abetting in the distribution of cocaine, and on one count of possessing cocaine with intent to distribute. The Court of Appeals for the First Circuit established a briefing schedule, setting July 30, 1987, as the due date for the statement of issues and designation of appendix contents, and August 24 as the date when appellant's brief and appendix were due. On July 29, 1987, Bonneau's attorney, John C. McBride, sought and was granted an extension of the briefing deadlines because the relevant trial transcripts were not yet completed. An extension was granted: appellant's statement of issues and designation of appendix were due on October 12, 1987, and the brief and appendix were due on November 12, 1987. McBride filed appellant's statement of issues on October 20, 1987, more than a week late and altogether failed to file the required designation of appendix contents. On November 23, 1987, McBride moved for another extension to file appellant's brief and appendix because the court reporter had not yet completed the transcripts. We granted a second extension until December 28, 1987. McBride failed to meet the extended deadline.

On March 3, 1988, nothing having been filed since the request for the extension of time on November 23, 1987, the appeal was dismissed for want of prosecution under Local Rule 45 of the First Circuit. ² Notice of dismissal was mailed to Bonneau's counsel. On March 28, 1988, mandate issued and the original record was returned to the district court.

Local Rule 45 provides that counsel may move for reinstatement within ten days of the dismissal of the appeal. On June 9, 1988, over ten weeks later, McBride moved to reinstate the appeal. There was no showing of "unusual circumstances justifying the grant of such a request." Nor did McBride offer an explanation of why he was two months late in filing the motion. McBride tendered a brief and appendix with his motion for reinstatement of the appeal. By order entered August 4, 1988, we denied McBride's motion to reinstate Bonneau's appeal.

Sometime thereafter appellant retained new counsel who on July 20, 1988, filed a motion under Fed.R.Crim.P. 35, as then in effect, asking that the court reduce his sentence. The motion was denied, and no appeal was taken from the denial.

On December 14, 1989, a motion pursuant to 28 U.S.C. § 2255 was filed. Such a motion may be made at any time. The § 2255 motion raised two issues: First, appellant attacked his sentence on the ground that:

the court selected my sentence based upon a miscalculation of what the applicable range would be were I subject to sentencing under the U.S. Sentencing Comm'n Guidelines. This Court referred to a range of 168-210 months, when the correct range was at most 121 to 151 months.

The second issue was set forth as follows:

Retained counsel John McBride filed my timely notice of appeal, and then entered his appearance on my behalf in the Court of Appeals to represent me on my direct appeal, on July 31, 1987. Counsel obtained extension of time to December 28, 1987 to file brief and appendix because transcript was not ready. Counsel failed to seek additional extension and did not file brief or appendix. For this reason, the appeal dismissed for want of prosecution under First Circuit Rule 45, on March 3, 1988, and notice was mailed to counsel. The mandate issued on March 28, 1988, and notice was again mailed to counsel. On June 9, 1988, counsel filed in the Court of Appeals a motion to reinstate the appeal, which was denied, together with the brief and appendix.

I wanted to pursue my direct appeal and at no time communicated otherwise to counsel. To the contrary, I repeatedly wrote to Mr. McBride asking about the progress of my appeal. (I also paid Mr. McBride a substantial fee for pursuing that appeal, which Mr. McBride has to this day retained.) Counsel informed me that he had filed the brief and that the appeal was progressing long before he actually submitted the brief with his motion to reinstate the appeal. Counsel never told me that in actuality my appeal had been dismissed due to counsel's failure to file a brief and appendix. I was only later informed of this by my present lawyers.

Appellant argued in support of his § 2255 motion that he did not have to show that he had a meritorious issue for appeal in order to obtain the relief sought by the § 2255 motion--the right to appeal his conviction and sentence. The district court disagreed and required that appellant establish a meritorious appellate issue before being granted the right to appeal. While continuing to maintain that he did not have to show that he had a meritorious appellate issue, appellant filed a memorandum outlining two issues for direct appeal.

In denying the § 2255 motion, the district court stated:

The First Circuit has in similar circumstances left it "open to the government to show that the [defaulted] appeal would have lacked merit." Lopez-Torres v. United States, 876 F.2d 4, 5 (1st Cir.), cert. denied, 110 S.Ct. 508 (1989). Nothing in the current jurisprudence of the Supreme Court, cf. Arizona v. Fulminante [--- U.S. ----, 111 S.Ct. 1246, 113 L.Ed.2d 302] (1991), suggests that this harmless error analysis would be invalid in this context.

The district court rejected appellant's contention that he did not have to show the existence of a meritorious appellate issue and considered the issues outlined by appellant in a memorandum to the court. The court held:

Because I find no merit to these contentions, I need not address the arguably antecedent question whether the movant has demonstrated ineffectiveness by his former counsel in prosecuting his appeal. Even assuming ineffective counsel, the movant has failed beyond any reasonable doubt to demonstrate the existence of an issue sufficient to lead to a reversal of his conviction, new trial, or reduction in his sentence. Thus, I decline to allow his motion.

The district court issued a separate memorandum and order in response to appellant's motion pursuant to Fed.R.Crim.P. 35. The court denied the motion after explaining in detail its use of the Sentencing Guidelines and the reasons for the sentence given to appellant.

For the reasons that follow we hold the district court erred in requiring appellant to establish a meritorious appellate issue as a prerequisite to being granted a direct appeal.

II. ANALYSIS

The Sixth Amendment guarantees that the accused shall "have the Assistance of Counsel for his defence." "The plain wording of this guarantee thus encompasses counsel's assistance whenever necessary to assure a meaningful 'defence.' " United States v. Wade, 388 U.S. 218, 225, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967). See Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932) (Criminal defendant "requires the guiding hand of counsel at every step in the proceedings against him."); Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387 (1970).

In Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), the Court held that the due process clause of the Fourteenth Amendment guarantees a criminal defendant the right to effective assistance of counsel on appeal. The Court stated:

In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, with its consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a criminal appellant must face an adversary proceeding that--like a trial--is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant--like an unrepresented defendant at trial--is unable to protect the vital interests at stake. To be sure, respondent did have nominal representation when he brought this appeal. But nominal representation on an appeal as of right--like nominal representation at trial--does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all.

Id. at 396, 105 S.Ct. at 836 (emphasis added).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court considered "the standards by which to judge a contention that the Constitution requires that a criminal judgment be overturned because of the actual ineffective assistance of counsel." Id. at 684, 104 S.Ct. at 2062. The Court stated: "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. at 2063. A two-step analyses must be made before a conviction can be overturned because of ineffective assistance of counsel....