Pena v. United States, No. 06-0218-pr (2d Cir. July 21, 2008)
This month, the court re-issued decisions in two cases decided in June - one of which the court subsequently withdrew [see prior posts “Role of Certs” and “Withdrawal Symptoms”] - dealing with counsel’s obligation to file a petition for a writ of certiorari.
In Nnebe, an appeal of the denial of a 2255 motion, all parties agreed that appointed counsel violated the court’s CJA plan by failing to seek certiorari despite his client’s request that he do so. At issue here was the appropriate remedy. The government argued that 2255 relief was unavailable, and that this should end the case. Nnebe argued instead that the court should construe the petition as one to recall the mandate and vacate its judgment. The court agreed to do so. Although this is an “unusual remedy,” Nnebe acted with diligence and clearly established that he requested that a certiorari petition be filed.
In Pena, where the defendant had retained counsel, the court held that the constitutional right to the effective assistance of counsel does not include either discussing with the defendant the possibility of seeking certiorari or assisting him in filing a petition. Unlike in Nnebe, the CJA did not apply.
