UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
July 6, 2007
ROBERT CLAY MCFADDEN, 113117-055, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
In a previous Order (Dkt. #73*fn1 ), this Court directed that the parties file offers of proof regarding the limited question of whether petitioner's criminal counsel at the time was instructed or requested to file an appeal of petitioner's sentence, and if so, the circumstances and timing of when the request or instruction was made. The aforementioned Order also stated that, if it is determined that petitioner instructed or requested that his attorney appeal his sentence he was bound to file the appeal, even if counsel believed the requested appeal would be frivolous because of a valid waiver of a right to appeal contained in the plea agreement*fn2 . If counsel failed to do so, pursuant to Campusano v. United States, 442 F.3d 770, 771 - 72 (2d Cir. 2006), he was constitutionally ineffective and prejudice would be presumed without requiring a showing of the relative merit of the appeal and the petitioner will be entitled to a direct appeal.
On June 11, 2007, the government filed its offer of proof wherein it conceded "that the defendant did in fact ask his attorney, Mr. Brown, to file a notice of appeal and that Mr. Brown failed to do so. In light of Campusano v. United States %%% the government concedes that the defendant should be allowed a direct appeal."(Dkt. #74, p. 4). As a result of the government's concession in this regard, the Court need not conduct a hearing on this issue and petitioner's motion shall be granted to the extent that he shall be allowed a direct appeal of his sentence.
The Court also previously indicated that counsel would be appointed for petitioner in the event that he filed the appropriate paperwork establishing his financial inability to retain counsel and his eligibility for appointment of counsel under 18 U.S.C. § 3006A(g)*fn3 , however, no such request or paperwork has been filed to date. Therefore, counsel will not be appointed at this time.
For the foregoing reasons and for the reasons stated in this Court's Order entered on May 21, 2007 (Dkt. #73), petitioner's motion (Dkt. #67) is hereby GRANTED and he shall be allowed a direct appeal of his criminal sentence in this case. The Clerk of the Court is hereby directed to take such steps so as to allow for such appeal to be filed.