United States District Court, N.D. New York
September 28, 2004.
CARLJOHN J. LINEN, Petitioner,
The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
MEMORANDUM DECISION AND ORDER*fn1
Petitioner Carljohn J. Linen ("Petitioner" or "Linen") now
moves the Court for the following relief: (1) pursuant to
28 U.S.C. § 2255, a new judgment to be entered so that he may file a
timely notice of appeal in order to appeal his conviction and
sentence, and (2) for the appointment of counsel for
representation in the entry of this judgment and to file the
notice of appeal. The United States of America, as Respondent,
opposes these motions.
On or about May 3, 1988, Linen was convicted in County Court
for Warren County, New York, for the sale of a controlled
substance. Between January 31, 1999 and April 21, 1999, Linen
took actual possession of a Mossberg 12 gauge, Model 500A pump
shotgun, bearing Serial No. P569233. This gun was manufactured in
North Haven, Connecticut prior to January 31, 1999. On April 21,
1999, Linen possessed this gun at his residence in Wilton,
Saratoga County, in the Northern District of New York.
On June 4, 1999, a federal grand jury in Albany, New York
returned a one-count indictment charging Linen with illegal possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). On July
28, 2000, Linen pled guilty to the indictment pursuant to a
written plea agreement. The plea agreement did not provide for
waiver of an appeal. On December 13, 2000, Linen was sentenced to
30 months imprisonment.*fn2 Petitioner states that on
numerous occasions he spoke with Attorney Hyath B. Gross about
appealing the ruling. After not hearing from his attorney for
some time, Petitioner wrote to Lawrence Baerman, Clerk of the
Court, and inquired as to the status of his notice of appeal.
Petitioner received a letter from Clerk Baerman, stating that no
notice of appeal had been filed on his behalf. After Linen
received this letter, he filed his 28 U.S.C. § 2255 motion.
I. Standard of Review for Motion under § 2255
As one court noted, the collateral attack on a guilty plea
under § 2255 is "quite stringent" because it is "presume[d] that
the proceedings which led to defendant's conviction were
correct." United States v. Moss, 137 F. Supp. 2d 1249, 1256 (D.
Ineffective assistance of counsel claims are appropriately
brought as § 2255 petitions. "Non-constitutional errors of law,
including sentencing errors, do not provide a basis for
collateral attack under § 2255 unless the claimed error
constitutes a fundamental defect which inherently results in a
complete miscarriage of justice." Berkovits v. United States,
1998 U.S. Dist. LEXIS 8195 (S.D.N.Y. June 3, 1998) (citations
omitted). A § 2255 movant can successfully challenge a guilty
plea conviction based on ineffective assistance of counsel when
petitioner has been deprived of his right to a direct appeal whatever the merits of the appeal.
Garcia v. United States, 278 F.3d 134, 134 (2d Cir. 2002);
McHale v. United States, 175 F.3d 115, 119 (2d Cir. 1999).
A. Ineffective Assistance of Counsel
When a petitioner claims ineffective assistance of counsel, he
must show that (1) counsel's representation fell below an
objective standard of reasonableness, and (2) counsel's deficient
performance prejudiced the defendant. Strickland v. Washington,
466 U.S. 668, 669 (1984).
The Second Circuit deems a lawyer's actions to be
professionally unreasonable, and therefore ineffective assistance
of counsel, when he fails to file an appeal specifically
instructed by his client. Garcia, 278 F.3d at 134 (citing Roe
v. Flores-Ortega, 528 U.S. 470 (2000)). "A prudent lawyer will
either file a notice of appeal or file an affidavit from the
client that he does not want to take an appeal." McHale,
175 F.3d at 119. When a petitioner has been deprived of his right to
a direct appeal because his attorney has failed to follow his
instructions and so file, it does not matter whether there is any
merit to that appeal ineffective assistance of counsel has been
demonstrated. Garcia, 278 F.3d at 134.
1. Petitioner's Argument
Petitioner moves for a new judgment to be entered imposing the
same sentence. In so moving, Petitioner states that on three
occasions he spoke with Attorney Gross about making arrangements
for an appeal on this matter. (Dkt. No. 2). "Attorney Gross made
it clear to me that . . . I would be best advised to plead guilty
and make my challenge . . . at another time in a higher court."
(Dkt. No. 10). Petitioner also states that he spoke with Gross
and "I told him that I wished to pursue an appeal. . . . He
informed me that he would arrange for my appeal." (Dkt. No. 10).
After not hearing from Gross for some time, Petitioner wrote to
Clerk Baerman, and inquired as to whether Gross had filed a notice of appeal. (Dkt. No. 2).
Petitioner received a letter from the Clerk, stating that no
notice of appeal had been filed on his behalf. (Dkt. No. 2
Attachment A). The United States contends that Petitioner never
requested that Gross appeal his conviction and sentence, nor did
he express an interest in doing so, but the United States did not
provide an affidavit from Gross confirming these facts. (Dkt. No.
It is well-settled that illegal possession by a convicted felon
of a firearm that has previously traveled in interstate commerce
is sufficient for conviction under 18 U.S.C. § 922(g)(1), and
therefore Petitioner's appeal likely has no merit. However, the
Second Circuit has held that the failure to file an appeal is
presumed to be ineffective assistance of counsel. This Court has
no other option but to re-enter judgment due to that ineffective
assistance and impose the same sentence. Garcia,
278 F.3d at 138; McHale, 175 F.3d at 119-20.
B. Appointment of Counsel
Petitioner asks for counsel to be appointed for entry of a new
judgment and to pursue his direct appeal. Petitioner has a right
to counsel provided by the state for his first appeal as of
right. Evitts v. Lucey, 469 U.S. 387, 393-94 (1985) (citing
Douglas v. People, 372 U.S. 353, 356 (1963)). When a criminal
defendant brings an appeal, "the appellant must face an adversary
proceeding that is governed by intricate rules that to a
layperson would be hopelessly forbidding." Id. "An
unrepresented appellant . . . is unable to protect the vital
interests at stake," if not represented by counsel. Id. at 396.
Therefore, Petitioner is entitled to counsel on his first
direct appeal as of right. Counsel will be appointed for the
entry of a new judgment with the same sentence, and for the
possible pursuit of an appeal. CONCLUSION
Accordingly, it is hereby
ORDERED that Petitioner's request for entry of a new judgment
with the same sentence so that he may file a notice of appeal is
GRANTED; and it is further
ORDERED that judgment be re-entered and the same sentence
imposed at a hearing scheduled for November 4, 2004 at 11:30
am; and it is further
ORDERED that an attorney will be appointed to represent
Petitioner for the entry of the new judgment and the possible
pursuit of an appeal.
IT IS SO ORDERED.