Taylor v. United States

• Decision Date: 13 May 2016
• Docket Number: Docket No. 15–827.
• Citation: 822 F.3d 84
• Parties: Javel TAYLOR, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

822 F.3d 84

Javel TAYLOR, Petitioner–Appellant

v.UNITED STATES of America, Respondent–Appellee.

Docket No. 15–827.

United States Court of Appeals, Second Circuit.

Argued: April 7, 2016.

Decided: May 13, 2016.

Amy Lester (Margaret Garnett, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for the United States.

Randolph Z. Volkell, Merrick, NY, for petitioner-appellant.

Before: KATZMANN, Chief Judge, CABRANES, Circuit Judge, and KAPLAN, District Judge.^*

KATZMANN

, Chief Judge:

The Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A

, entitles financially eligible defendants to the assistance of counsel when petitioning for a writ of certiorari. In Nnebe v. United States, we held that the “unusual remedy” of recalling a mandate is available when counsel appointed under the CJA interferes with that right by “promis[ing] to file a certiorari petition, but fail[ing] to do so.” 534 F.3d 87, 88, 91 (2d Cir.2008). Recalling the mandate allows us to reenter judgment in the direct appeal and, thus, restart the clock for filing a petition so that the defendant may timely seek relief.

This case requires us to determine whether the same remedy is available when CJA counsel fails to timely inform a defendant that his conviction has been affirmed and thereby deprives the defendant of an opportunity to petition for rehearing or rehearing en banc. We conclude that it is, but that appellant Javel Taylor has not established his entitlement to such relief at this stage. Because, however, Taylor has not had an opportunity below to substantiate his allegations, we remand for further factual development.

BACKGROUND

On December 1, 2011, a jury convicted Taylor of one count of conspiracy to distribute crack cocaine in violation of 21 U.S.C. §§ 841(b)(1)(C)

and 846 and one count of distributing crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). The district court sentenced Taylor to 84 months' imprisonment. Taylor, with the assistance of counsel appointed under the CJA, timely appealed. On October 21, 2013, we affirmed his conviction and sentence by summary order. See

United States v. Fitzgerald, 542 Fed.Appx. 30, 31 (2d Cir.2013). The mandate issued on November 14, 2013.

On January 7, 2014, less than three months later, Taylor filed a pro se motion under 28 U.S.C. § 2255

to vacate his conviction and sentence. Of particular relevance here, Taylor argued that his counsel provided ineffective assistance of counsel by failing to timely notify Taylor that his appeal had been decided, which had the effect of depriving Taylor of an opportunity to petition for rehearing and rehearing en banc. Taylor alleged that he first learned that his appeal had been decided from a “paralegal service” a month after the decision had been rendered and, thus, past the fourteen-day period during which a petition may be filed. See Fed. R.App. P. 35(c) & 40(a).

The district court denied Taylor's motion. The court assumed, arguendo, that the Sixth Amendment right to effective assistance of counsel applies to petitions for rehearing and rehearing en banc, but held that Taylor had not established that he suffered any prejudice from his inability to petition since “it is highly unlikely that a petition for rehearing or rehearing en banc would have been granted” and Taylor had “identified no issue that the Second Circuit panel incorrectly decided.” App. at 10. Given this disposition, the United States District Court for the Southern District of New York (Paul G. Gardephe, Judge ) declined to hold an evidentiary hearing to allow Taylor to offer proof of his allegations. The district court also denied Taylor a certificate of appealability.

Taylor then moved pro se in this Court for a certificate of appealability. We granted the motion with respect to a single issue: “whether Appellant is entitled to relief pursuant to Nnebe v. United States, 534 F.3d 87, 89–92 (2d Cir.2008)

, on his claim that his attorney, who was appointed under the Criminal Justice Act, failed to timely inform Appellant of this Court's adverse decision on direct appeal, thus causing Appellant to lose his opportunity to petition for rehearing or rehearing en banc. ” App. at 26. We also directed the Clerk's Office to appoint new CJA counsel to represent Taylor in this limited appeal.

DISCUSSION

On appeal, and now with the assistance of counsel, Taylor urges us to construe his appeal of the district court's judgment as a motion to recall the mandate in his direct appeal and to vacate our original judgment and reenter judgment. Doing so would allow Taylor an opportunity to timely seek rehearing.

We resolve Taylor's request for relief in three steps. The first two are of general application. First, we determine that the CJA affords financially eligible defendants the right to representation when petitioning for rehearing and rehearing en banc. Second, we conclude that the remedy of recalling the mandate is available when counsel appointed under the CJA fails to provide such assistance. Having resolved these two issues in Taylor's favor, we address a third question, in particular, whether Taylor has established his entitlement to relief here. On this final issue, we conclude that Taylor has not yet had an opportunity to offer proof of his allegations and, accordingly, we remand for further proceedings.

I.

We begin by addressing the scope of representation under the CJA. “[T]he CJA establishes the broad institutional framework for appointing counsel for a criminal defendant who is financially unable to obtain representation.” United States v. Parker, 439 F.3d 81, 91 (2d Cir.2006)

. Defendants eligible to receive CJA counsel are entitled to representation in a broad range of proceedings, including, for example, when charged with a violation of supervised release, 18 U.S.C. § 3006A(a)(1)(E), when held in custody as a material witness, id. § 3006A(a)(1)(G), and when, as here, facing a felony charge, id. § 3006A(a)(1)(A). The CJA further provides that defendants who are entitled to counsel “shall be represented at every stage of the proceedings from his initial appearance before the United States magistrate judge or the [district] court through appeal, including ancillary matters appropriate to the proceedings.” Id. § 3006A(c). When a defendant “appeals to an appellate court or petitions for a writ of certiorari, he may do so without prepayment of fees and costs or security therefor.” Id. § 3006A(d)(7).

It is now settled that these provisions guarantee eligible defendants the right to representation when seeking a writ of certiorari from the Supreme Court. The Supreme Court has twice granted late-filed pro se petitions for certiorari and remanded for further proceedings when a defendant's CJA counsel, without adequate justification, failed to assist in the filing of a timely petition. See Wilkins v. United States, 441 U.S. 468, 99 S.Ct. 1829, 60 L.Ed.2d 365 (1979)

(per curiam); Sotelo v. United States, 474 U.S. 806, 106 S.Ct. 42, 88 L.Ed.2d 35 (1985) ; see also

United States v. Sotelo, 778 F.2d 1125, 1126 (5th Cir.1985). Our circuit plan implementing the CJA, see 18 U.S.C. § 3006A(a) (directing each circuit to create a plan “with provisions for representation on appeal”), has also incorporated this understanding of the CJA, providing, in relevant part:

In the event of a decision adverse to the CJA client in this Court, the CJA attorney shall promptly transmit to the CJA client a copy of the Court's decision, advise the CJA client in writing of the right to file a petition for writ of certiorari with the United States Supreme Court, inform the CJA client of the CJA attorney's opinion as to the merit and likelihood of success in obtaining such a writ, and if requested to do so, petition the Supreme Court for certiorari. Despite a CJA client's directive to file a writ, if a CJA attorney has reasonable grounds to believe that a petition for certiorari would have no likelihood of success, the CJA attorney may file with this Court a motion to be relieved and serve a copy on the CJA client and other counsel within ten days of the filing of an adverse decision of this Court. If the Court relieves the CJA attorney, he or she shall, within 48 hours after such motion is granted, so advise the CJA client in writing and inform the CJA client concerning the procedures for filing a petition for a writ of certiorari pro se.

Second Cir. Local R., Appendix Part A: Amended Plan to Implement the Criminal Justice Act of 1964 (June 18, 2010) (“CJA Plan”) § IX. C. Other circuits' plans provide eligible defendants with materially the same protections.

We have never before considered, however, whether the CJA also entitles defendants to representation when seeking rehearing and rehearing en banc. We now conclude that it does. Although the CJA does not explicitly address petitions for rehearing or rehearing en banc, it provides, as noted, that eligible defendants “shall be represented ... through appeal.” 18 U.S.C. § 3006A(c)

. We retain jurisdiction—and an appeal does not conclude—until the mandate issues, see

United States v. Rodgers, 101 F.3d 247, 251 (2d Cir.1996), and under the Federal Rules of Appellate Procedure, the mandate will not issue until after the time to petition for rehearing and rehearing en banc expires, see Fed. R.App. P. 41(b). It follows that the right to assistance “through appeal” encompasses the right to assistance with seeking rehearing and rehearing en banc. Further, given that the CJA has been uniformly interpreted to provide defendants with the assistance of counsel when seeking review in the Supreme Court, it would be anomalous to find that defendants have no right to representation in the antecedent process of seeking rehearing in the court of appeals.

Of course, this does not mean that CJA counsel must always file a petition for rehearing or rehearing en banc whenever a defendant requests. Just as counsel may move to...