Pratt v. U.S.A. CV-95-123-M 05/15/95 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

David P. Pratt

v. #C-95-123-M

United States of America

ORDER ON WRIT OF HABEAS CORPUS

The petitioner has filed this writ of habeas corpus stating

that Attorney Joseph Caulfield denied him effective assistance of

counsel by refusing to file a notice of appeal after petitioner

informed him that he wanted an appeal.

PROCEDURAL HISTORY

The petitioner was indicted on November 5, 1992 for causing

to be sent or delivered by the United States Postal Service a

communication containing a threat to injure a person.

Specifically, petitioner caused to be mailed to Chief Stephen

Monier, of the Goffstown New Hampshire Police Department, the

mutilated corpse of a pig.

On December 3, 1992 Attorney Andrew D. Wickwire appeared

specially for the petitioner for the limited purpose of

representing the petitioner at the bail hearing.

On December 3, 1992 Attorney I. Michael Winograd appeared

for the petitioner. Attorney Wickwire withdrew as petitioner's counsel on January 21, 1993.

On May 11, 1993 the petitioner signed a plea agreement

whereby he agreed to plead guilty to count one of an indictment

charging him with mailing threatening communications in violation

of

. A sentencing hearing was scheduled to take

place on August 6, 1993.

On June 29, 1993 Attorney Winograd filed a motion to

withdraw as petitioner's counsel, citing that irreconcilable

differences had arisen between him and the petitioner.

On July 21, 1993 the petitioner wrote to the court re-

guesting permission to have Attorney Winograd removed as his

counsel, because petitioner had been intimidated by Winograd to

plead guilty.

On July 27, 1993 the court allowed Attorney Winograd to

withdraw and the petitioner was directed to advise the court who

he had retained as new counsel by August 18, 1993.

Attorney J. Normand Jacgues then appeared for the petitioner

and on September 20, 1993 filed a motion to withdraw petitioner's

guilty plea. The court deferred ruling pending psychological

medical evaluation citing

and 4244.

On October 12, 1993 Attorney Jacgues filed a motion to

withdraw as counsel. The motion was granted by the court on

October 13, 1993.

2 Attorney Joseph Caulfield then filed an appearance for the

petitioner on October 12, 1993.

On October 18, 1993 the court, having reservations about the

petitioner's condition, ordered that he receive a medical and

psychiatric examination pursuant to

, 4244. The

petitioner was ordered to surrender to the United States Marshal

on October 28, 1993 for such examination. The court held in

abeyance any ruling on petitioner's motion to withdraw his guilty

plea pending completion of the examination and subseguent

hearing.

On January 31, 1994 the court granted petitioner's motion to

withdraw his guilty plea. The court further noted that it is

clear from the psychiatric evaluation that the petitioner was

competent to stand trial.

On June 16, 1994 the day before the petitioner was sentenced

Attorney Caulfield wrote to the petitioner informing him of the

following:

Please find the Probation Department's revised report as well as a letter from your former wife.

In any event, after you are sentenced, my representation of you in this matter is concluded. I do not do Federal Appellate work. If you intend to appeal to the United States Court of Appeals for the First Circuit, the rules reguire that you file your Notice of Appeal within ten days of the Judgment being entered on the docket. If you miss this filing deadline you have forty days to file a Motion Seeking Leave to Late File your Appeal on the basis of

3 Excusable Neglect. Generally this Motion is allowed.

If you wish to appeal the Judgment, I suggest you immediately contact an attorney who specializes in such matters or the Public Defender's office.

On June 17, 1994 Petitioner, after having been convicted of

the offense of mailing threatening communications in violation of

, was sentenced to 37 months.

Petitioner, by motion dated August 10, 1994 and filed in

this court on August 17, 1994, reguested leave to late file a

notice of appeal.

In petitioner's motion he stated that his trial attorney

failed to file notice of appeal despite petitioner's repeated

reguests.

By order dated September 7, 1994, the court denied peti­

tioner's motion on the following bases: petitioner did not file

a notice of appeal within 10 days of the entry of judgment, the

appeal having been filed on August 10, 1994; petitioner did not

file a timely motion, i.e. within 30 days after expiration of the

time allotted for filing a notice of appeal; petitioner did not

seek an extension of the filing deadline; and petitioner did not

show excusable neglect or good cause for failing to file a timely

notice within the period prescribed. See Fed. R. A p p . P. 4(b)

and (c) .

On September 30, 1994 the petitioner filed a motion to

4 reconsider the court's September 1 , 1994 order. Petitioner

stated that he had received Attorney Caulfield's June 1 6 , 1994

letter on or about June 19 while at the Hillsborough County Jail

where he remained until July 5th and then was transferred to the

first of three federal prisons between that date and July 28,

1994. Petitioner also contends that Attorney Caulfield had a

duty to appeal. Finally, petitioner states that although the

court was allegedly aware that his counsel was withdrawing prior

to filing an appeal, the sentencing transcript shows that the

court failed to advise defendant, pursuant to Fed. R. Crim. P.

32, that if he so reguests the Clerk will prepare and file his

notice of appeal.

On July 8, 1994 while at FCI Otisville the petitioner

reguested C. Hawthorne, the paralegal there, to file a notice of

appeal. On July 13, 1994 petitioner was transferred to USP

Lewisburg. On July 28, 1994 petitioner arrived at FCI Ray Brook

where he is presently incarcerated. On or about August 8, 1994

petitioner received a response from Hawthorne concerning his

appeal. Hawthorne informed petitioner that, as a paralegal, he

was unable to file the notice of appeal.

On October 19, 1994 petitioner's motion for reconsideration

was denied, the reason being that the court was without

jurisdiction to grant the reguested relief.

5 Subsequently, on November 10, 1994 petitioner filed a notice

of appeal with the First Circuit Court of Appeals.

Attorney Caulfield by letter dated December 6, 1994 wrote to

the Office of the Clerk for the United States Court of Appeals

for the First Circuit. In this letter Attorney Caulfield stated

that at a lobby conference Judge McAuliffe informed him that his

representation of the petitioner would end at the termination of

the jury trial.

On March 9, 1995 the petitioner filed a

motion and affidavit. As grounds for his § 2255 motion,

petitioner alleges ineffective assistance of counsel and the

failure of the court to comply with Fed. R. Crim. P. 32( c ) (5) by

neglecting to notify him that the Clerk of Court will prepare and

file a notice of appeal on his behalf.

DISCUSSION

(Federal custody; remedies on motion

attacking sentence) provides that:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the

6 court which imposed the sentence to vacate, set aside or correct the sentence.

A motion for such relief may be made at any time.

The Court of Appeals has no jurisdiction to consider a

motion brought under

when the district court has

failed to act on such motion. Davis v. United States,

(9th Cir. 1949).

Fed. R. Crim. P. 32(c ) (5) (1995) (previously 32( a ) (2)

(1994)) provides that "after imposing sentence in a case which

has gone to trial on a plea of not guilty, the court must advise

the defendant of the defendant's right to appeal. ... If the

defendant so reguests, the clerk of the court must immediately

prepare and file a notice of appeal on behalf of the defendant."

In the case at hand, the court informed the petitioner of

his right to appeal pursuant to Fed. R. Crim. P. 32. Sentencing

transcript page 26. However, the petitioner did not indicate to

the court, at the time of sentencing, that he wanted to appeal

his case. This being the situation, it is not incumbent upon the

court to inform the petitioner about the succor the clerk of

court can give to him in formulating an appeal.

The court next addresses petitioner's contention of

ineffectiveness of counsel. Specifically, petitioner contends

that Attorney Caulfield, regardless of the fact that he wrote a

letter disclaiming any expertise relating to federal appellate

7 procedure, had a duty to file a notice of appeal.

"The Constitution entitles a criminal defendant to repre­

sentation at the trial and sentencing stages and through the

first appeal to which he has a right." Morin v. Rhode Island,

(D.R.I. 1990).

It is axiomatic that the withdrawal of counsel at a crucial

time during the tolling of the appellate time together with

petitioner's unfamiliarity with appellate procedure militates

against an expeditious appeal. Griffin v. George B. Buck

Consulting Actuaries, Inc.,

(S.D.N.Y. 1983).

Further, a defendant's right to effective assistance of

counsel applies not just at trial but also on direct appeal.

Evitts v. Lucev,

, 105 S. C t . 830, 836,

(1985); Romero v. Tansy,

(10th Cir.

1995) .

The United States Court of Appeals for the Fourth Circuit

has reiterated the principles noted in Evitts v. Lucy, supra.

Fundamentally, the right to counsel is "reguired in the hiatus

between the termination of trial and the beginning of an appeal."

Nelson v. Pevton,

(4th Cir. 1969), cert, denied,

, 90 S. C t . 1235,

(1970); Baker v.

Kaiser,

(10th Cir. 1991)

Habeas corpus petitions alleging ineffectiveness of counsel for failure to perfect direct appeals from convictions present a

common question: whether a prisoner who contends that his

attorney rendered ineffective assistance by failing to perfect an

appeal from his conviction must show that he would have prevailed

had an appeal been taken. Castellanos v. United States, 2

(7th Cir. 1994). See Bonneau v. United States,

(1st Cir. 1992). Like other courts, this court answers the

question in the negative.

The court finds that there has been a denial or infringement

of the constitutional right of the petitioner to appeal his case.

As such the petitioner shall be resentenced so that he can take a

direct appeal to the First Circuit Court of Appeals.

This court, at the request of the sentencing Judge, Steven

J. McAuliffe, has ruled on this writ of habeas corpus.

May 15, 1995

Martin F. Loughlin Senior Judge

David P. Pratt