U.S. v. West

• Decision Date: 26 January 2001
• Docket Number: No. 00-50069,00-50069
• Citation: 240 F.3d 456
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEE ANN WEST, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 456

240 F.3d 456 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEE ANN WEST, Defendant-Appellant.

No. 00-50069

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

January 26, 2001

Appeal from the United States District Court for the Western District of Texas.

Before BARKSDALE and BENAVIDES, Circuit Judges, and VELA,¹ District Judge.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For this out-of-time direct criminal appeal granted Dee Ann West, pursuant to her § 2255 motion, primarily at issue is whether her notice of appeal is premature because, after granting the appeal, the district court did not re-enter the underlying judgment for her conviction and sentence. If it is premature, we have no jurisdiction concerning the two issues for which the appeal was granted: whether West was denied due process of law and effective assistance of counsel by the district court's denial of additional funding for experts (expert-funding); and whether the district court erred in denying her motion for a continuance.

In this appeal, West raises not only those two issues, but also one other presented in her § 2255 motion: whether the district court erred in denying severance. But, because the grant of the out-of-time appeal did not extend to the severance issue, and because West did not appeal the denial of § 2255 relief on that point, the severance issue has been waived. And, because West's notice of appeal is premature, our deciding the two issues permitted for the out-of-time appeal (expert-funding and continuance) is held in abeyance, pending re-entry of her underlying criminal judgment. We DISMISS in PART; VACATE in PART; and REMAND in PART.

I.

In December 1995, West and co-defendant O'Callaghan were convicted for several drug-trafficking offenses. The judgment for the conviction and sentence (the criminal judgment) was entered 26 February 1996. Separate counsel represented West and O'Callaghan at trial and on appeal. Their criminal judgments were affirmed on direct appeal. United States v. O'Callaghan, 106 F.3d 1221, 1223 (5th Cir. 1997) (sufficient evidence to sustain conviction and no error in sentencing West).

Pursuant to 28 U.S.C. § 2255, West moved to vacate, set aside, or correct her criminal judgment, asserting, inter alia, that, on appeal, she received ineffective assistance of counsel. West maintained appellate counsel was ineffective in failing to raise the district court's denials of expert-funding, a continuance, and a severance. Along this line, and concerning her trial, she asserted: she was denied due process because the district court effectively denied her an expert and a continuance; she was denied effective assistance of counsel and due process because counsel failed to timely move for a severance; and she was denied Fifth Amendment due process by her joint trial with O'Callaghan.²

Although West's counsel filed an appellate brief, it was merely a copy of that filed for O'Callaghan. The district court found West's appellate counsel ineffective for failing to perfect her appeal on the expert-funding and continuance issues. As a result, it granted West an out-of-time appeal specifically limited to those two grounds. In this regard, the district court stated: "Because [it found] that appellate counsel's performance on appeal of [West's] case denied [West] the right to effective assistance of counsel, [it did] not reach West's remaining claims for [§ 2255] relief". (Emphasis added.)

Accordingly, the district court granted in part the relief sought by West's § 2255 motion: leave to file an out-of-time appeal was limited to the expert-funding and continuance issues, and did not include the severance issue; and West's request to vacate her conviction and sentence was denied. (The order stated that the § 2255 motion was "granted"; but, as discussed infra, the relief was not that provided for under 28 U.S.C. § 2255, which includes vacating the criminal judgment.)

The corresponding judgment for the § 2255 motion was entered 9 December 1999. But, the district court did not re-enter West's underlying criminal judgment on the criminal docket.

Six weeks later, on 20 January 2000, West filed a notice of appeal only from "the judgment of conviction entered December 22, 1995, and the sentence entered February 26, 1996". (Emphasis added.) (In fact, the verdict was returned 22 December 1995; the criminal judgment was entered 26 February 1996.) West did not also appeal from the § 2255 judgment itself, particularly the severance issue's not being included in the out-of-time appeal granted her.

II.

A.

West's notice of appeal was filed 42 days after the § 2255 civil judgment. A timely notice of appeal is, of course, a precondition to the exercise of appellate jurisdiction. E.g., United States v. Merrifield, 764 F.2d 436, 437 (5th Cir. 1985). It goes without saying that, if necessary, we must examine sua sponte the basis of our jurisdiction. E.g., United States v. Lister, 53 F.3d 66, 68 (5th Cir. 1995).

Confusion apparently has existed as to: whether the underlying criminal judgment must be reinstated on the criminal docket following the grant of an out-of-time direct criminal appeal, or whether such reinstatement is de facto; and whether the time for appeal is 10 days under Federal Rule of Appellate Procedure 4(b)(1)(A) (granting 10 days to file notice of appeal in criminal case) or 60 days under Federal Rule of Appellate Procedure 4(a)(1)(B) (granting 60 days to file notice of appeal in civil case in which United States is party). As discussed infra, for an out-of-time direct criminal appeal granted pursuant to a § 2255 judgment: the underlying criminal judgment must be reinstated on the criminal docket; and the time for appeal is 10 days.

The time for appeal commences to run the day "the judgment or order appealed from is entered". Fed. R. App. P. 4(a)(1)(B) (emphasis added); Fed. R. App. P. 4(b)(1)(A) (emphasis added). The judgment granting an out-of-time direct criminal appeal is simply the mechanism by which a defendant is able to appeal directly from her earlier, underlying criminal judgment. Accordingly, for her out-of-time appeal, West is not appealing the civil judgment entered 9 December 1999 on her § 2255 motion, but rather the earlier, underlying criminal judgment, entered 26 February 1996. (Again, because of the limited nature of her notice of appeal, West appealed only the underlying criminal judgment; she did not also appeal the § 2255 civil judgment, even though some of the relief requested in her § 2255 motion was denied by that judgment.) Therefore, the 10-day period under Rule 4(b)(1)(A) (appeal in criminal case) applies.

Of course, a district court does not have the authority to create appellate jurisdiction simply by ordering an out-of-time direct criminal appeal. Compliance with the Federal Rules of Appellate Procedure is imperative. Rule 4(b)(1)(A) provides: "In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after ... the entry of either the judgment or the order being appealed...." Fed. R. App. P. 4(b)(1)(A) (emphasis added). "A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket." Fed. R. App. P. 4(b)(6).

Because the district court did not re-enter the criminal judgment after it granted the out-of-time appeal, West's 20 January 2000 notice of appeal is both late and premature: obviously, it is untimely as measured from the 26 February 1996 criminal judgment; at the same time, it is premature, because the time to appeal, pursuant to the grant of the out-of-time appeal, has not commenced to run.

Our court's opinion in Mack v. Smith, 659 F.2d 23, 25-26 (5th Cir. Unit A 1981), provides that, when leave to file an out-of-time appeal is granted, the district court should reinstate the criminal judgment to trigger the running of a new Rule 4(b) appeal period. In Mack, our court held appellant Mack was entitled to a hearing on whether, pursuant to his § 2255 motion, he had been denied a direct appeal because he had received ineffective assistance of counsel. Id. at 25. Our court vacated the order denying the § 2255 motion and remanded for a determination whether Mack should be permitted the out-of-time appeal. Id. It instructed the district court:

If Mack proves his [§ 2255] claims to the satisfaction of the district court, the § 2255 petition is to be dismissed without prejudice. Mack's judgment of conviction is then to be reinstated on the docket of the trial court as of the date to be fixed by the trial court from which the time of the appeal shall run.

Id. at 25-26 (emphasis added).

The Government contends that the instructions given the district court in Mack were simply dicta; West merely finds the opinion "instructive". However, we consider the instructions binding precedent. E.g., Burlington N. R.R. Co. v. Bhd. of Maint. of Way Employees, 961 F.2d 86, 89 (5th Cir. 1992)("one panel may not overrule the decision, right or wrong, of a prior panel in the absence of en banc reconsideration or superseding decision of the Supreme Court" (internal quotation marks and citation omitted)), cert. denied, 506 U.S. 1071 (1993). We emphasize that, even though the procedural posture of Mack differed from the case at hand, the judgment-reinstatement procedure set out in Mack applies in our circuit to all out-of-time direct criminal appeals. We are not creating a new rule, but rather clarifying an old one.

Since the 1960s, our court, pursuant to a § 2255 motion, has permitted an out-of-time appeal when a defendant was denied assistance of counsel on appeal, through counsel's failure to perfect an appeal. See, e.g., Barrientos v. United States, 668 F.2d 838, 842 (5th Cir. 1982) ("[F]ailure of counsel to timely file an appeal upon request of the defendant ... would constitute ineffective assistance of counsel entitling the defendant to post-conviction relief in the form of an...