US v. Nagib

• Citation: 844 F. Supp. 480
• Decision Date: 28 July 1993
• Docket Number: 89-CR-160.,No. 92-C-1170 (JPS),92-C-1170 (JPS)
• Parties: UNITED STATES of America, Plaintiff, v. Kareem NAGIB, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

844 F. Supp. 480

UNITED STATES of America, Plaintiff, v. Kareem NAGIB, Defendant.

Nos. 92-C-1170 (JPS), 89-CR-160.

United States District Court, E.D. Wisconsin.

July 28, 1993.

Matthew L. Jacobs, Asst. U.S. Atty., Milwaukee, WI, for plaintiff.

Robert L. Graham, Stephen L. Wood, Jenner & Block, Chicago, IL, for defendant.

ORDER

STADTMUELLER, District Judge.

I. Background

Defendant Kareem Nagib was convicted of one count of conspiracy to possess with intent to distribute LSD in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2, and one count of conspiracy to possess with intent to distribute Psilocybin in violation of the same statutes after a jury trial in March of 1990. On September 28, 1990, Mr. Nagib was sentenced to imprisonment for a term of 235 months. Judgment of conviction was entered against Mr. Nagib on October 1, 1990.

Mr. Nagib's court-appointed counsel did not file a notice of appeal within ten (10) days after the date of entry of the judgment of conviction. Instead, his counsel filed a motion to reconsider the sentence. This motion did not toll the time for filing a notice of appeal. On October 29, 1990, counsel moved this court for an extension of time to file a notice of appeal. On November 7, 1990, this court granted his motion and allowed him ten (10) days from the date of that order to file a notice of appeal. On November 15, 1990, Mr. Nagib filed his notice of appeal. Mr. Nagib filed his brief with the Court of Appeals for the Seventh Circuit setting forth a total of five issues for appellate review.

In an opinion issued June 25, 1991, the Court of Appeals found the notice of appeal to be untimely and dismissed Mr. Nagib's appeal for lack of jurisdiction, while declining to reach the merits of the case. United States v. DuMont, 936 F.2d 292, 295 (7th Cir.1991). Mr. Nagib, through new counsel, filed a motion for rehearing, rebriefing and reargument before the Court of Appeals. That motion was denied on July 16, 1991.

On November 2, 1991, Mr. Nagib filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In his motion, Mr. Nagib asserts that his appointed trial counsel was ineffective in failing to file a timely notice of appeal thereby depriving him of his fundamental right to appeal his criminal conviction. Movant asks this court to grant his motion, vacate his sentence and resentence him allowing him to file a timely notice of appeal and pursue his right to appeal from his criminal conviction.

II. Analysis

The Supreme Court has recognized that due process requires that appellants have effective assistance of counsel on appeals as of right, Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), and that an appeal from a criminal conviction is a matter of right. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-step analysis for ineffective assistance of counsel claims:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S.Ct. at 2064.

Notably, the Court found that some types of deficient performances are per se prejudicial:

In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.... Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost. Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify....

Id. at 692, 104 S.Ct. at 2067 (citations omitted).

Mr. Nagib contends that ineffective assistance of appellate counsel that results in the complete loss of appellate rights constitutes a "denial of the assistance of counsel altogether" and entitles him to a presumption of prejudice under the Strickland analysis. Moreover, he asserts that he is entitled to a new appeal without the requirement of demonstrating how his attorney's performance was prejudicial.

In support of his position, Nagib submits that he is entitled to reentry of judgment and a new appeal based on the reasoning of the Court's decision in Rodriquez v. United States, 395 U.S. 327, 328, 89 S.Ct. 1715, 1716, 23 L.Ed.2d 340 (1969). In Rodriquez, petitioner was prevented from appealing his conviction by his counsel's failure to file a notice of appeal within the 10-day period. The trial court held that it lacked jurisdiction because of the missed filing deadline, and the Ninth Circuit Court of Appeals affirmed. Id. Petitioner then brought a suit for post conviction relief under 28 U.S.C. § 2255, alleging that he had been improperly denied his right to appeal, and asking that his conviction be set aside and he be resentenced so that he could appeal. Id. The district court denied the § 2255 application because of petitioner's failure to follow a Ninth Circuit rule that required applicants, such as petitioner, to disclose what errors they would raise on appeal and to demonstrate that denial of the appeal had caused prejudice. Id. at 329, 89 S.Ct. at 1716-17. The Ninth Circuit affirmed, holding that petitioner was unable to demonstrate any likelihood of success on appeal. Id.

The Supreme Court reversed, holding that a direct appeal was a matter of right and that petitioner should not be required to enumerate the issues he might raise on appeal. Id. at 330, 89 S.Ct. at 1717. Finally, the Court reversed and remanded for resentencing "so that petitioner may perfect an appeal in the manner prescribed by the applicable rules." Id. at 332, 89 S.Ct. at 1718.

Although not directly on point, the case of Lozada v. Deeds, 498 U.S. 430, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), demonstrates the viability of Rodriquez. In Lozada, the petitioner was convicted in state court of four crimes arising out of the possession and sale of a controlled substance, however, he filed no direct appeal. After exhausting his state remedies, Lozada filed a habeas corpus action in federal court pursuant to 28 U.S.C. § 2254 alleging his counsel's ineffective assistance deprived him of the opportunity to appeal his state court convictions. Id. at 430, 111 S.Ct. at 861. The court found that petitioner had failed to indicate what issues would have been raised and demonstrate that the appeal might have succeeded. Id. at 431, 111 S.Ct. at 861. As a result, the district court concluded that petitioner had not shown prejudice under Strickland and dismissed his petition. Id. The court later denied Lozada a certificate of probable cause to appeal the denial of habeas corpus relief, and the United States Court of Appeals for the Ninth Circuit also denied a certificate of probable cause. Id. The Supreme Court concluded that the court of appeals erred and reversed the refusal to grant a certificate of probable cause. Id. at 432, 111 S.Ct. at 862. Furthermore, the Court remanded the case, instructing the courts below on the issue of prejudice:

We believe the issue of prejudice caused by the alleged denial of the right to appeal could be resolved in a different manner than the one followed by the District Court. Since Strickland, at least two Courts of Appeals have presumed prejudice in this situation. See Abels v. Kaiser, 913 F.2d 821, 823 (10th Cir.1990); Estes v. United States, 883 F.2d 645, 649 (8th Cir. 1989); see also Rodriquez v. United States, 395 U.S. 327, 330 89 S.Ct. 1715, 1717, 23 L.Ed.2d 340 (1969).

Id. On remand, the Ninth Circuit held that Rodriquez governed the case and that prejudice would be presumed. Lozada v. Deeds, 964 F.2d 956, 958 (9th Cir.1992) ("We hold that prejudice is presumed under Strickland if it is established that counsel's failure to file a notice of appeal was without the petitioner's consent").

Mr. Nagib contends that Strickland recognizes that, in circumstances like those presented in Rodriquez or in the present case, the courts should presume that counsel's ineffective assistance is prejudicial without requiring petitioner to demonstrate such prejudice. Therefore, he argues, the Supreme Court's decision in Rodriquez requires this court to reenter judgment, so that he may file a notice of appeal and pursue his direct criminal appeal in the Seventh Circuit.

We next examine pertinent opinions of the courts of appeals. Although the Seventh Circuit has not specifically addressed the presumption of prejudice issue raised in this case, three circuits have. In Bonneau v. United States, 961 F.2d 17 (1st Cir.1992), defendant filed a timely notice of appeal of his judgment of conviction and sentence, but his attorney failed to meet extended deadlines for filing his appellate brief. Therefore, the court of appeals dismissed defendant's appeal for want of prosecution. Id. at 18. Defendant filed a motion pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of his appellate counsel. Id. The district court denied his motion, finding that movant failed to show the prerequisite existence of a meritorious appellate issue. Id. at 19. The First Circuit stated that there was "no doubt that appellant here was deprived of his constitutional right to appeal because of the dereliction of counsel." Id. at 23. Furthermore, defendant was entitled to an opportunity to appeal "and must be treated like any other appellant appealing for the first time." Id., citing Rodriquez v. United States, 395 U.S. at 330, 89 S.Ct. at 1717. The court vacated the dismissal of the § 2255 petition and remanded to the district court "for...