In Pena v. United States, No. 06-0218-pr (2d Cir. June 12, 2008) (Jacobs, Parker, Wesley, CJJ)(per curiam), the court held that a retained attorney was not ineffective for failing to advise his client of the right to seek certiorari. While the Sixth Amendment right to counsel covers a first-tier appeal, there is no constitutional right to counsel beyond that. Seeking certiorari is the first step in the non-Sixth Amendment discretionary appeal, and not the last step in the first-tier appeal. Accordingly, Pena’s counsel was not ineffective in failing to inform him of his right to seek certiorari.
The court noted that the Criminal Justice Act imposes greater obligations on appointed counsel. But since Pena’s counsel was retained, that statute did not apply. That said, the court advised that “as a matter of sound professional practice, retained counsel representing federal criminal defendants” in the Second Circuit “should, like their [appointed] counterparts, inform their clients of the availability of, and the process for, pursuing certiorari review and assist them with filing appropriate certiorari petitions, if retained to do so.”
In Nnebe v. United States, No. 05-5713-pr (2d Cir. June 12, 2008), the same panel, this time in a decision authored by Judge Parker, considered the same issue in a case where counsel was appointed.
After Nnebe’s conviction was affirmed by the circuit, appointed counsel wrote to him and explained that the next step was to seek certiorari. Counsel enclosed a draft cert petition and a form motion for IFP status. Nnebe returned the IRP motion, but counsel did not respond and, without telling his client, never filed the cert petition. Nnebe ultimately sought 2255 relief.
The circuit held that Nnebe’s counsel violated the Criminal Justice Act, which sets out appointed counsel’s duties with respect to cert petitions. The difficulty here was Nnebe had sought relief under § 2255. But there was no constitutional violation, and the “complete miscarriage of justice” exception for non-constitutional errors did not apply because Nnebe could not show prejudice. His cert petition would “almost certainly” have been denied.
Taking its cue from Wilkins v. United States, 441 U.S. 468 (1979), the court construed Nnebe’s appeal as a “motion to recall the mandate and vacate [its] judgment so that a new one can be entered,” which it granted. This will give Nnebe a chance to file a timely cert petition. Given its “construction” of the appeal, the court indicated that it would be “illogical” to continue treating the case as if based on a § 2255 motion, thus Nnebe was relieved of the need to show prejudice.
The court’s final word was a reminder that “recalling a mandate is an unusual remedy intended for extraordinary circumstances.” But this case was extraordinary. The defendant acted with diligence and “proffered compelling documentary evidence” in support of his claim.
