Court: Court of Appeals for the Second Circuit; May 13, 2016; Federal Appellate Court
The Criminal Justice Act (CJA), 18 U.S.C. 3006A, grants financially eligible defendants the right to counsel when seeking a writ of certiorari. In Nnebe v. United States, it was established that if CJA counsel fails to file a certiorari petition as promised, the unusual remedy of recalling a mandate is available to allow the defendant to timely seek relief. The current case examines whether this remedy applies when CJA counsel fails to inform a defendant of an affirmed conviction, thus hindering the opportunity to petition for rehearing or rehearing en banc. The court concludes that the remedy is applicable, but Javel Taylor has not yet demonstrated entitlement to relief. Taylor, convicted of drug-related offenses in 2011, argued that he was not timely notified of his appeal's outcome, which deprived him of the chance to petition for rehearing. The district court denied his motion under 28 U.S.C. 2255, assuming the right to effective counsel applies to rehearing petitions but finding no demonstrated prejudice, as it was unlikely a petition would succeed. The court declined to hold an evidentiary hearing and denied a certificate of appealability. Taylor subsequently sought a certificate of appealability, which the court granted regarding the claim of ineffective assistance of counsel for failing to notify him of the adverse decision, and appointed new CJA counsel for this appeal.
Taylor seeks to have his appeal of the district court's judgment treated as a motion to recall the mandate from his direct appeal, which would allow him to timely request a rehearing. The resolution of his request involves three steps. First, it is determined that the Criminal Justice Act (CJA) mandates representation for financially eligible defendants when petitioning for rehearing and rehearing en banc. Second, recalling the mandate is a permissible remedy if CJA-appointed counsel fails to assist. Finally, on the substantive issue of Taylor's entitlement to relief, it is concluded that he has not yet had a chance to present proof of his claims, necessitating a remand for further proceedings.
The CJA lays out the framework for appointing counsel for defendants unable to afford representation, entitling them to assistance throughout various stages of proceedings, including appeals. This right extends to seeking a writ of certiorari from the Supreme Court without prepayment of fees. Precedents indicate that the Supreme Court has previously remanded cases for further action when a defendant's counsel failed to timely support a petition for certiorari. Additionally, the circuit's plan under the CJA stipulates that CJA attorneys must inform clients of their right to file for certiorari and provide assistance if requested, unless there are reasonable grounds to believe the petition would be unsuccessful. In such cases, the attorney can seek to be relieved of representation, requiring them to inform the client of the necessary steps for filing pro se.
The Criminal Justice Act (CJA) of 1964 entitles eligible defendants to representation when seeking rehearing or rehearing en banc, despite the CJA not explicitly mentioning these petitions. The CJA ensures defendants 'shall be represented... through appeal' (18 U.S.C. 3006A(c)), and jurisdiction remains until the mandate issues, which aligns with the Federal Rules of Appellate Procedure (Fed. R. App. P. 41(b)). This implies that the right to assistance 'through appeal' includes support for obtaining rehearing. The consistent interpretation across circuits reinforces the importance of continued representation, particularly when defendants seek review in higher courts, making it illogical to deny representation for rehearing requests in appellate courts. However, CJA counsel is not obligated to file a petition for rehearing if deemed frivolous but must inform the defendant of their right to pursue a pro se petition. If counsel seeks to withdraw, they must do so promptly and also request an extension for the defendant to file a pro se petition, ensuring the defendant's rights are protected. This interpretation is supported by similar rulings in other circuits, including the Eighth, Eleventh, Seventh, and Third Circuits, which have incorporated the right to counsel in their CJA plans and clarified the obligations of CJA counsel regarding frivolous petitions.
Unreported decisions support the requirement that counsel must timely inform defendants about filing pro se petitions for rehearing. Cases such as United States v. Gamble and United States v. Palacios highlight the obligation of counsel to provide this information and to assist clients in filing extensions for pro se petitions. The CJA ensures defendants are represented in filing non-frivolous petitions; if counsel deems a petition frivolous, they must inform the client of the option to file pro se and subsequently move to withdraw.
In instances where CJA counsel fail to timely assist with petitions for rehearing, defendants can only regain their right to assistance if the court recalls the mandate and reenters judgment, allowing for a new timeline to file a petition. This authority to recall is exercised sparingly and only in exceptional cases, as established in Bottone v. United States. The case of Nnebe v. United States exemplifies this situation, where counsel’s failure to file a certiorari petition led to a motion under 28 U.S.C. 2255. The district court denied Nnebe’s motion, stating there was no constitutional right to effective counsel for certiorari, but this court later interpreted the appeal as a motion to recall the mandate, recognizing the violation of CJA requirements.
A remedy has been established to address violations of the Criminal Justice Act (CJA) concerning court-appointed counsel's representation. The court will treat Nnebe’s appeal as a motion to recall the mandate and vacate its judgment, allowing him to petition for certiorari. The court rejected the government's argument that defendants must show prejudice to recall the mandate, asserting that such a requirement would conflict with the CJA's objectives and hinder oversight of court-appointed counsel. This approach aligns with the Supreme Court’s ruling in Wilkins v. United States, which highlighted the entitlement of defendants to legal assistance in seeking certiorari after failures by CJA counsel. The court emphasized the need to provide appropriate relief to prevent disadvantages stemming from inadequate representation, affirming that imposing a prejudice requirement would undermine the right to counsel. However, recalling the mandate is not automatic; it will not be granted if a defendant fails to act diligently or lacks sufficient evidence to support their claims.
The government's main argument against recalling the mandate is that it can only be done if there has been a violation of the CJA Plan. They assert that such a violation was essential in the case of Nnebe. However, the court disagrees, clarifying that while Nnebe addressed remedies for violations of the CJA Plan, it did not imply that a violation of the Plan was a prerequisite for recalling the mandate. The court emphasizes that the effective implementation of the CJA is of primary concern and can be compromised by violations of either the statute or the Plan. Past cases have demonstrated that recalling the mandate does not require proof of a specific CJA Plan violation.
In this case involving Taylor, the court acknowledges that while he acted diligently to seek relief, his unsupported allegations regarding his counsel's failures prevent the mandate from being recalled at this stage. The court agrees with the government on this point but notes that the previous ruling did not investigate whether Taylor's claims had merit. Therefore, the court remands the case to the district court to investigate whether Taylor’s counsel failed to inform him of the decision affirming his conviction and whether counsel communicated the opportunity to petition for certiorari. The district court is also instructed to allow Taylor’s original CJA counsel to present evidence regarding the alleged deficiencies in representation.
Counsel appointed under the Criminal Justice Act (CJA) must promptly inform clients of adverse decisions, including the right to petition for certiorari and rehearing. If a client wants to file a rehearing petition but counsel deems it frivolous, counsel should inform the client about the option to proceed pro se, seek to withdraw, and file for an extension of time for the client to pursue relief independently. Failure to fulfill this obligation may lead to recalling the mandate to vacate and reenter judgments, allowing for a timely petition. In Taylor's case, he has alleged that his counsel did not timely advise him of the affirmation of his conviction, thus hindering his right to petition for rehearing. The court interprets Taylor's appeal as a motion to recall the mandate, but it denies the motion at this time and remands for further proceedings, leaving the determination of Taylor's allegations to the district court. Following the district court's factual findings, jurisdiction may revert to the court, which will set a briefing schedule. The document notes guidance from the Supreme Court and specific factors for recalling mandates, particularly regarding changes in governing law and the effective implementation of the CJA. Additionally, it references the necessity for resentencing in light of Supreme Court decisions impacting CJA defendants' rights, particularly concerning representation and fee waivers.
A district court has the discretion to appoint counsel under the Criminal Justice Act (CJA) in habeas and parole revocation proceedings. The government attempts to differentiate the case of Shaaban by asserting that the Seventh Circuit’s CJA plan mandates counsel to file a petition for rehearing if the client requests it and there are reasonable grounds. However, this assertion is contested as the plan, unchanged since 1996, does not explicitly require such filings. The case of Howell supports this interpretation, as it did not rely on the Seventh Circuit's CJA plan. The court notes that Taylor alleges a violation of the CJA Plan, specifically that his counsel failed to inform him of an adverse decision in a timely manner, which could constitute non-compliance with CJA requirements. The district court is not criticized for not holding an evidentiary hearing since the issue was first raised in the order granting Taylor a certificate of appealability. In future cases where a defendant claims deprivation of CJA assistance regarding rehearing petitions, the district court should stay the consideration of a 2255 motion and instruct the defendant to file a motion to recall the mandate. If granted, the defendant would then need to file a new 2255 motion if the rehearing is unsuccessful. Counsel for Taylor is to continue representation on remand.
