The opinion of the court was delivered by: JOHN E. SPRIZZO
Petitioner Arthur Prioleau brings this petition pursuant to 28 U.S.C. § 2255 seeking to vacate his sentence because he was not informed of his right to appeal.
For the reasons that follow, that petition is granted, and the Court directs that petitioner be resentenced.
Petitioner was convicted of armed bank robbery and conspiracy to commit bank robbery on July 17, 1987. He was sentenced to concurrent terms of ten years in prison on the armed bank robbery count and five years on the conspiracy count on November 20, 1987. That judgment was affirmed by the Court of Appeals on March 9, 1988.
In August, 1989, petitioner wrote a letter, later deemed a pro se petition to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, seeking a clarification that his sentence was intended to run concurrently with a four year New Jersey state prison term that petitioner was at that time serving. Since the Court had been uninformed at the time of sentencing that petitioner was subject to any other sentences, see Prioleau, supra, 746 F. Supp. at 384, the Court vacated the November 20, 1987, sentence and, on December 11, 1990, resentenced petitioner to the same sentence to run consecutively with the state sentence.
Petitioner was represented at that resentencing by court appointed counsel. Petitioner now argues that he was denied effective assistance of that counsel and due process of law since he was not advised by counsel or by the Court that he had a right to appeal after that judgment of sentence. A review of the transcript of Prioleau's December 11, 1990, resentencing reveals that the Court did not advise Prioleau of his right to appeal.
Both before and after the aforesaid amendment, Rule 32(a)(2) has been interpreted to mandate that district courts advise defendants of their appeal rights. See United States v. Ferraro, 992 F.2d 10, 11-12 (2d Cir. 1993) (per curiam) (citing United States v. Butler, 938 F.2d 702, 703 (6th Cir. 1991); Paige v. United States, 443 F.2d 781, 782 (4th Cir. 1971); United States v. Deans, 436 F.2d 596, 599 (3d Cir.), cert. denied, 403 U.S. 911, 29 L. Ed. 2d 688, 91 S. Ct. 2211 (1971); United States v. Benthien, 434 F.2d 1031, 1032 (1st Cir. 1970); Nance v. United States, 422 F.2d 590, 591-92 (7th Cir. 1970)). This mandatory rule is designed to spare courts from having to inquire after the fact into whether defendants were aware of that right even though not specifically advised of that right by the Court. See, e.g., Ferraro, supra, 992 F.2d at 12; United States v. Drummond, 903 F.2d 1171, 1176-78 (8th Cir. 1990) (Heaney, J., dissenting), cert. denied, 498 U.S. 1049, 111 S. Ct. 759, 112 L. Ed. 2d 779 (1991); Fed. R. Crim. P. 32 advisory committee's note, 1966 Amendment (requiring courts to advise defendants of their right to appeal to prevent litigation caused by trial counsels's frequent failures to do so).
The only serious question here is whether that bright line rule should be applied where, as here, a defendant has already taken an appeal from his conviction on the merits, and where all issues arising out of his conviction, including those issues relating to his sentence, could have been raised, and where, therefore, the policy considerations underlying the bright line rule may not be applicable, especially given the limited appellate jurisdiction to review sentencing issues in a pre-Guidelines case.
The Court concludes that given the language of the Rule and the interpretations placed on it by this Circuit, that it ought to apply the bright line rule notwithstanding the considerations noted above, resentence the defendant, and let the Court of Appeals determine the correctness of the applicability of that rule on the unique facts of this case. In so doing the Court expresses no view as to whether on that appeal the defendant should be permitted to raise issues that could or should have been raised on his first appeal.
For the reasons stated above, petitioner's motion for a reduction of his offense level is denied. The Clerk of Court is directed to ...