Katz v. U.S.
| Decision Date | 10 August 1990 |
| Docket Number | No. 89-35797,89-35797 |
| Citation | 920 F.2d 610 |
| Parties | Dennis Ralph KATZ, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Dennis Ralph Katz, Safford, Ariz., in pro per.
Andrew R. Hamilton, Asst. U.S. Atty., Seattle, Wash., for defendant-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before TANG, NELSON and CANBY, Circuit Judges.
Dennis Katz ("Katz") appeals pro se the district court's dismissal of his 28 U.S.C. Sec. 2255 motion. Katz alleged ineffective assistance of counsel based on his counsel's failure to perfect his appeal. The district court denied the petition, ruling that his escape disentitled his appeal and that the extreme delay prejudiced the government. We affirm the denial of the petition.
On March 31, 1971, a jury convicted Katz of two offenses related to the concealment, transportation, and delivery of marijuana. On April 23, 1971, the district court sentenced Katz to seven years of imprisonment on each of his offenses and to a $2500 fine. The terms of imprisonment were concurrent.
The same day the district court sentenced Katz, he filed a notice of appeal. That day Katz was also released on bond. Sometime after the filing of the notice of appeal and his release on bond, Katz left the jurisdiction. Because Katz failed to perfect his appeal, this court dismissed Katz's appeal for lack of prosecution.
In 1984, thirteen years after his escape, authorities in Norway arrested Katz on drug charges. The United States obtained extradition and incarcerated Katz at a federal correctional institution.
On March 28, 1989, Katz filed a motion to correct, vacate, or set aside his sentence pursuant to 28 U.S.C. Sec. 2255. Among his claims, Katz asserted that his counsel had been ineffective because he allegedly made various errors relating to the 1971 trial and sentencing. The magistrate recommended dismissal of Katz's ineffective assistance of counsel claim on two grounds: (1) Katz's escape disentitled him from any further review of his conviction or sentence, and (2) Rule 9(a) of the Rules governing section 2255 motions precludes such motions when delay prejudices the government. Katz challenged the magistrate's report on the ground that his counsel was ineffective because he failed to perfect Katz's appeal. The district court adopted the magistrate's report and dismissed Katz's case. Katz filed a timely appeal.
We review the district court's denial of a section 2255 motion de novo. United States v. Keller, 902 F.2d 1391, 1393 (9th Cir.1990).
Katz argues that he was denied effective assistance of counsel because his attorney failed to perfect Katz's appeal after he left the jurisdiction. The government argues that we need not reach the merits of the case because Katz forfeited all rights to further review of his conviction or sentence under the disentitlement doctrine when he escaped federal custody. We reject the government's disentitlement argument, but we also conclude that Katz's ineffective assistance of counsel claim has no merit.
In Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970), the United States Supreme Court held that it need not adjudicate the pending appeal of a fugitive. This circuit has followed Molinaro and has held that the court may in its discretion refuse to exercise its jurisdiction We agree with the underlying rationale of those cases. It is usually appropriate to refuse to exercise jurisdiction over the appeal of a person who is in fugitive status because that person is attempting to bargain with or to obtain a tactical advantage over the court: that is, to await the judicial result and return if it is favorable or to remain a fugitive if it is not. One may not invoke the power of judicial review only thereafter to obey or disobey the court's mandate as one sees fit. Freelove, 816 F.2d at 480. Thus we may dismiss an appeal of a fugitive, and the fugitive may later have to bear the consequences of that lost opportunity.
to hear the pending appeal of a fugitive. See, e.g., Hussein v. INS, 817 F.2d 63 (9th Cir.1986) (); United States v. Freelove, 816 F.2d 479, 480 (9th Cir.1987) ().
Molinaro, Hussein, and Freelove do not apply to this case. Katz is in federal custody as he prosecutes this current appeal. Thus, unlike the defendants in the cited cases, Katz's appeal and his fugitive status are not contemporaneous events. Because Katz is in custody, he is not now bargaining or seeking a tactical advantage over this court. He remains subject to its jurisdiction and its mandate no matter the result. Therefore, the rationale underlying Molinaro, Hussein, and Freelove does not apply here.
In 1971, had our attention been called to Katz' status, we would have dismissed Katz's direct appeal, if perfected, on the basis of Molinaro because he was then a fugitive when that appeal was pending. However, we have not previously applied the disentitlement doctrine to a defendant who escaped after conviction but was recaptured prior to pursuing further legal remedies. Thus, contrary to the government's assertions and the district court's decision, the mere fact of Katz' escape during the pendency of his then direct appeal does not operate now to bar the present appeal by application of the disentitlement doctrine.
The government cites with favor the broader application of the disentitlement doctrine adopted by the Second Circuit in United States v. Persico, 853 F.2d 134 (2nd Cir.1988). In Persico, a jury convicted defendant-appellant Persico in 1980 on several counts relating to extortion. Id. at 135-36. After conviction but prior to sentencing, Persico escaped. Id. at 136. In 1987, Persico was recaptured. Id. After sentencing, Persico then brought a direct appeal which alleged trial and sentencing errors. Id.
The Second Circuit began its analysis of the alleged trial error by noting that the disentitlement doctrine of Molinaro--dismissal of a fugitive's pending appeal--is well established. Id. The court identified four considerations that underlie the disentitlement doctrine: (1) a decision respecting a fugitive is effectively unenforceable because the fugitive is beyond the control of the court; (2) loss of appellate review is appropriate because a fugitive by escaping flouts the judicial process; (3) a rule of dismissal has the salutary effect of discouraging escape and promotes the efficient operation of appellate courts; and (4) the delay occasioned by the period of a defendant's flight can prejudice the prosecution should a new trial be ordered after a successful appeal. Id. at 137.
The Second Circuit observed that its case was unlike Molinaro in two ways: first, Persico escaped after conviction but before sentencing; and second, Persico was not at large when the appeal was pending. Id. Nevertheless, the Second Circuit concluded that "the considerations that support the Molinaro line of decisions provide compelling reasons for declining to consider trial errors asserted by a defendant who absconds after conviction and is recaptured before sentencing." Id. The Second Circuit acknowledged that one consideration prompting the disentitlement doctrine (a fugitive being beyond the control of the court) did not apply in Persico, but argued that the other three considerations applied We will not follow Persico to broaden and make the disentitlement doctrine apply when the person seeking judicial relief is no longer a fugitive. Persico's rule does not merely seek to prevent a fugitive from obtaining an unacceptable tactical advantage with the court; it enters the realm of punishment and penalizes a fugitive for his escape. We think there are several reasons why this step is unwise.
with equal force. See id. at 137-38. Indeed, the Second Circuit asserted that defendants like Persico who escaped after conviction but before sentencing were more disrespectful of the judicial process than those who escaped after the filing of the notice of appeal. Id. at 138. Nevertheless, the Second Circuit did grant review of Persico's sentencing claim because sentencing occurred after his return to custody. Id
First, we question that the disentitlement doctrine will have the deterrent effect that the Persico court high...
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