Post-Conviction Relief for Immigrants



 
 

§ 5.21 2. Filing a Late Notice of Appeal

 
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            Courts have granted relief from default to permit late filing of a notice of appeal where the appellant relied on the jailers or trial attorney to assist in doing so,[49] or was not informed of his or her right to appeal at the time sentence was imposed after trial.[50]  Check the reporter’s transcript of the sentencing hearing to ensure the judge gave the defendant the mandatory advice of the right of appeal.  If not, s/he has an argument that a notice of appeal is timely appealed if filed within the normal period after the defendant actually learned of the right of appeal, since there could be no knowing and voluntary waiver of the right to appeal absent being informed of the existence and nature of that right.[51]

 

If the defendant has relied upon counsel to file the notice of appeal, and counsel fails to do so, the defendant can be relieved from default.[52]  Even where the defendant has not expressly asked counsel to file an appeal, the United States Supreme Court recently recognized that counsel performs ineffectively in failing to consult with the defendant regarding an appeal and follow the client’s wishes.  See § 6.13, infra.

 

            When a late notice of appeal is filed, the clerk will mark it “received,” and the defendant can file a petition for a writ of mandamus or habeas corpus, or a motion for relief from default in the court of appeal, seeking an order directing the district court clerk to file it, which is usually granted in a proper case within a few weeks after filing.  From this point on, the conviction is “nonfinal.”[53]  Where a defendant has failed to file a timely appeal, but had filed an application for discretionary permission to file a late appeal, the conviction is still final and would not bar deportation.  After the court of appeal grants an order directing the clerk to file a late notice of appeal, however, the conviction will no longer be final, and any deportation proceedings should be terminated.[54]  A year or two later, if the conviction is ultimately affirmed, the INS may restart the deportation proceedings if it becomes aware of the ultimate ruling.

 

            In federal court, it can be difficult to obtain an order allowing late filing of the notice of appeal.[55]  On the other hand, the desire to avoid an ineffective counsel claim has been held sufficient.[56]


[49] Houston v. Lack, 487 U.S. 266 (1988); People v. Knauer 206 Cal.App.3d 1124, 253 Cal.Rptr. 910 (1988).

[50] California Rule of Court 470 requires the sentencing court to inform the defendant at the time of sentence of the right to appeal.  The court of appeal possesses the power to require the processing of a late appeal under proper circumstances.  Castro v. Superior Court, 40 Cal.App.3d 614, 619, 115 Cal.Rptr. 312, 314‑15 (1974).  Courts are liberal in granting this relief for several reasons.  First, the state’s interest in a just outcome reinforces an appellant’s claim that his appeal be considered on the merits.  People v. Acosta, 78 Cal.Rptr. 864, 867 (1969).  In addition, the approach of the courts has been tempered by the rule that any  waiver of the right of appeal must be made knowingly and intelligently.  In re Anderson, 6 Cal.3d 288, 293, 98 Cal.Rptr. 825, 829 (1971); see also People v. Acosta, supra, 78 Cal.Rptr. at 867 (1969).  If there was no knowing and intelligent waiver of the right to appeal, the court should permit late filing of the notice of appeal.  In addition, due process requires all reasonable doubts to be resolved in favor of the defendant and the court should avoid a forfeiture based on a technicality.  See People v. Chapman, 5 Cal.3d 225, 95 Cal.Rptr. 533, 537 (1971).

[51] See § 6.31, infra, concerning requirement of knowing and voluntary waiver of right to jury trial.

[52] See People v. Acosta, supra; Castro v. Superior Court, supra; People v. Ribero, 4 Cal.3d 55 (1971); People v. Riley, 73 Cal.App.3d Supp. 1 (1977).

[53] Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994).

[54] Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970).

[55] Pincay v. Andrews, 238 F.3d 1106 (9th Cir. December 10, 2003) (defense counsel’s ignorance of unambiguous court rules plus delegation of duty to know the rules to a nonlawyer, failed to constitute “excusable neglect” sufficient to justify granting a Federal Rule of Appellate Procedure rule 4(a)(5) motion for extension of time to file notice of appeal).

[56] United States v. Alvarez-Martinez, 286 F.3d 470 (7th Cir. April 12, 2002) (where defendant moved for extension of time to appeal under Fed. R. App. P. 4(b)(4), four days after deadline, district court granted extension without opposition, and need not explain reasoning where reasons can be discerned from the record and sufficient reason shown where record indicates motion was granted to avoid time-consuming ineffective assistance habeas claim).

Updates

 

Sixth Circuit

CONVICTION - FINALITY - OUT OF TIME APPEAL - PENDENCY OF REQUEST FOR LATE APPEAL DOES NOT AFFECT FINALITY OF CONVICTION
United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004) (request to begin belated appeal does not affect finality of a conviction).

Ninth Circuit

POST CON RELIEF - APPEAL - OUT OF TIME APPEAL
Johnson v. United States, 362 F.3d 636 (9th Cir. April 2, 2004) (second petition brought to challenge sentence not barred under "successive rule" by first habeas petition, brought to challenge counsel's failure to file notice of appeal).
POST CON RELIEF - APPEAL - OUT OF TIME APPEAL
Johnson v. United States, __ F.3d __ (9th Cir. April 2, 2004) (First habeas petition, brought only to challenge trial counsel failure to file notice of appeal, did not bar second "successive" petition challenging petitioner's sentence; successful 2255 petition, utilized to obtain out-of-time appeal, does not render subsequent collateral challenge "second" or "successive" under AEDPA).
http://caselaw.lp.findlaw.com/data2/circs/9th/0116947p.pdf

 

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