Professional Documents
Culture Documents
Unpublished
Unpublished
No. 12-6941
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:00-cr-00077-BO-1)
Argued:
Decided:
May 6, 2014
PER CURIAM:
Appellant
prisoner,
alia,
filed
that
he
Isabel
28
Gonzalez
U.S.C.
received
(Appellant),
2255
ineffective
motion
federal
contending,
assistance
of
inter
counsel,
failed
to
consider
Appellants
claim
that
he
received
17-18,
c. 1
On
October
2,
2001,
the
district
court
filing
of
that
procedural history.
motion,
this
case
has
had
Since
protracted
to
file
requested
notice
of
appeal
and
erroneously
Without
We granted
motions
questioned
hearing
Appellant
on
and
December
17,
trial
counsel
his
2004,
at
under
which
oath
it
about
The
2005,
district
Appellant
courts
filed
January
notice
14,
seeking
2005
Order.
to
We
On July
appeal
the
dismissed
179 F. Appx 174 (4th Cir. 2006) (per curiam) (explaining that a
notice of appeal must be filed within 60 days after the entry of
the
district
courts
final
judgment,
and
here,
Appellants
notice of appeal was filed more than six months after the entry
of final judgment).
On October 20, 2006, Appellant filed a pro se motion
for relief from the district courts January 14, 2005 Order,
pursuant
to
Rule
60(b)(1)
of
the
Federal
Rules
of
Civil
mistake,
inadvertence,
surprise,
or
excusable
neglect,
provided that the motion is made no more than a year after the
entry
of
the
judgment.
Fed.
R.
Civ.
P.
60(b)(1),
(c)(1).
at
the
December
17,
2004
evidentiary
hearing.
He
The
maintained
that
he
was
improperly
denied
appointed
untimely because it was filed more than five years after the
courts order dismissing Appellants 2255 motion.
5
Appellant
2011,
January
Appellant
14,
2005
moved
Order
the
as
district
void,
this
court
time
to
On August
vacate
pursuant
to
the
Rule
should
have,
in
fact,
been
characterized
as
an
the
28,
district
2011,
court
that
it
determined
would
in
again
an
hold
order
a
issued
hearing
to
an
J.A. 269.
evidentiary
hearing
essentially
granting
J.A. 270.
J.A.
271.
In
that
memorandum,
Appellant
alleged,
J.A. 272.
During this
counsel
testified
that
Appellant
specifically
recall
discussing
an
with
Appellant
following his sentencing hearing, but noted that per her regular
practice, she
would have told him when I went back to see
him on that day that if he wanted to appeal
that
he
could,
but
if
he
wanted
to
cooperate, then I would advise him against
appealing, as well as the fact that his plea
agreement had an appeal waiver in it.
J.A. 319.
According to
copy
examination,
the
of
the
letter
Governments
counsel
the
record,
read
on
portion
cross
of
the
J.A. 337.
the letter, but the purpose was to have trial counsel come and
see him.
J.A. 337.
and
that
he
could
only
raise
ineffective
assistance
of
order
Appellants
claim
(May
of
15,
2012
ineffective
Order),
with
assistance
of
regard
counsel
to
for
J.A. 343.
granted
issues:
certificate
(1)
whether
of
appealability
the
district
on
the
court
had
and
(2)
whether
Appellants
trial
counsel
was
also
agree
that
the
district
court
did
not
The
address
in
appealing,
regarding an appeal.
but
counsel
failed
to
consult
him
According to the
Government, the district court in its May 15, 2012 Order found
that Appellant did not unequivocally express a desire to appeal
10
to trial counsel.
coupled
with
Appellant
trial
counsels
regarding
an
testimony
appeal,
is
that
enough
she
for
us
did
counsel
to
conclude
jurisdictional
Appellants
Rule
issue
presented
60(b)(4)
motion
by
this
should
case
have
--
been
Cir. 2011).
United States v.
Winestock, 340 F.3d 200, 204 (4th Cir. 2003) (internal quotation
marks omitted).
In our consideration of the district courts dismissal
of Appellants 2255 motion, we review the district courts
legal conclusions de novo and its findings of fact for clear
error.
2013).
addressed
by
the
district
court
--
including
the
issue
of
States
v.
Roane,
378
F.3d
(emphasis supplied).
11
382,
395
(4th
Cir.
2004)
III.
A.
We first address whether the district court possessed
jurisdiction to reopen its 2005 denial of Appellants 2255
motion.
the
district
court
60(b)(4) motion.
again
via
Appellants
filing
of
Rule
The
district
court
provided
no
other
basis
for
proceeding.
Therefore,
to
establish
jurisdiction,
we
must consider whether a Rule 60(b) motion was the proper vehicle
to reopen the matter. 4
It is well settled law that a district court lacks
jurisdiction over a successive 2255 motion unless this court
authorizes such a filing.
We
recognize
that
the
Government
has
conceded
jurisdiction.
See Appellees Br. 17, 20.
However, because
subject-matter jurisdiction can never be forfeited or waived;
it involves a courts power to hear a case, we pause to assure
ourselves of jurisdiction in this case.
United States v.
Hartwell, 448 F.3d 707, 715 (4th Cir. 2006) (internal quotation
marks omitted).
12
in
be
treated
However,
as
not
successive
all
Rule
60(b)
applications;
motions
instead,
the
presented.
Id.
at
206-07.
Although
there
is
no
treated
as
successive
application,
relatively
conviction
or
sentence
will
usually
amount
to
Id. at 207.
circuits that have considered the issue have held that Rule 8(c)
requires the court to appoint counsel for indigent petitioners
if it holds a 2255 evidentiary hearing, and the failure to do
so constitutes structural error requiring automatic vacatur or
reversal.
evidentiary
hearing.
See,
e.g.,
id.
at
34-35
(quoting
Shepherd v. United States, 253 F.3d 585, 587 (11th Cir. 2001)
(per
curiam)
([W]e
observe
that
the
proceedings
clearly
See also Graham v. Portuondo, 506 F.3d 105, 107 n.2 (2d
Cir. 2007) (per curiam) (reversing the district court for
failure to appoint counsel for an evidentiary hearing on a
petition filed pursuant to 28 U.S.C. 2254 and recognizing,
the appointment of counsel requirement of the Rules Governing
2254 Cases is identical to that of the Rules Governing 2255
Proceedings); United States v. Bendolph, 409 F.3d 155, 160 (3d
Cir. 2005) (en banc); Green v. United States, 262 F.3d 715, 71718 (8th Cir. 2001); Shepherd v. United States, 253 F.3d 585, 588
(11th Cir. 2001) (per curiam); Swazo v. Wyo. Dept of Corr.
State Penitentiary Warden, 23 F.3d 332, 334 (10th Cir. 1994)
(ruling in the context of a 2254 proceeding); United States v.
Vasquez, 7 F.3d 81, 85 (5th Cir. 1993); Rauter v. United States,
871 F.2d 693, 695-97 (7th Cir. 1989).
14
had
jurisdiction
reopen
the
matter
without
establish
ineffective
assistance
of
counsel,
15
objective
deficient
standard
of
performance
reasonableness,
was
and
prejudicial.
(2)
See
counsels
Strickland
v.
has
long
held
that
lawyer
who
The Supreme
disregards
specific
Id.
We have
recognized that this is true even though the defendant may have
waived his right to challenge his conviction and sentence in the
plea agreement.
Flores-Ortega,
Strickland
to
hold
that
defendant
generally
defendant
whether
to
the
counsels
requires
pursue
Supreme
duty
counsel
an
to
to
appeal.
Court
consult
discuss
Frazer
with
with
v.
the
the
South
Specifically, in
applied
In assessing whether an
that
proceedings.
Of
defendant
the
defendant
seeks
an
end
to
judicial
who
may
this
have
duty
to
waived
consult
his
also
right
to
extends
to
the
challenge
his
As we have
17
First
and
foremost,
the
attorney,
as
recognized in Flores-Ortega, has the duty to
respect the appellate wishes of his client
by filing a timely notice of appeal if he is
unequivocally instructed to do so.
Second,
as further recognized in Flores-Ortega, even
if his client does not express (or clearly
express) a desire to appeal, the attorney
may be required to file a timely notice of
appeal after appropriate consultation with
. . . his client.
Id. (internal quotation marks omitted).
484.
If
counsel
fails
to
consult,
the
defendant
may
is
Frazer,
under
no
obligation
to
demonstrate
that
his
waiver,
his
counsel
still
representation
with
respect
to
Specifically,
effective
representation
18
owes
a
him
potential
in
this
effective
appeal.
circumstance
includes:
F.3d at 271.
the
May
15,
2012
Order,
the
district
court
J.A.
unequivocal
request
to
counsel
to
notice
direct
Id.
As a
of
new
evidentiary
hearing
19
regarding
Appellants
20