Wassouf v . United States CV-02-343-M 10/31/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

George Wassouf, Petitioner

v. Civil N o . 02-343-M Opinion N o .

United States of America, Respondent

O R D E R

By order dated June 2 0 , 2003 (document n o . 1 5 ) , the court

held that petitioner seemed to present one claim for relief in

his petition for relief under

that might prove

meritorious: that he timely directed his trial defense counsel to

file an appeal in his underlying criminal case, but counsel

failed to do s o . See, Roe v . Flores-Ortega,

(2000).

By order dated August 4 , 2003, the court appointed counsel

(Michael Shklar, Esq.) to represent petitioner in connection with

that issue. A hearing was held on September 2 4 , 2003.

Petitioner was present. Background

At the hearing, petitioner and the government addressed the

remaining issue, presenting witnesses and exhibits, including

relevant correspondence between petitioner and counsel.

Petitioner asserts, and testified, that he told his defense

counsel to file an appeal of his criminal conviction and

sentence, but counsel failed to do s o . Trial defense counsel,

Assistant Federal Defender Jonathan R. Saxe, filed an affidavit

contradicting petitioner’s claim. He also gave testimony that

contradicted petitioner’s assertions. Specifically, Saxe

testified that petitioner never told him that he wished to

appeal. To the contrary, Saxe said that petitioner plainly and

unambiguously expressed his decision not to appeal, both before

and after sentencing, and during two telephone conversations

before the time expired during which an appeal of right could

have been taken.

The remaining issue to be resolved in this habeas petition

is straightforward. Petitioner’s complaint amounts to an

assertion that he was denied effective assistance of counsel -

that Attorney Saxe acted in a professionally unreasonable manner

2 in failing to file a notice of appeal in his underlying criminal

case after having been instructed to do s o . See Rodriquez v .

United States,

(1969). The Supreme Court recently

addressed the subject of ineffective assistance of counsel as it

relates to the failure to file a notice of appeal in a criminal

case, holding:

If counsel has consulted with the defendant [about pursuing an appeal], the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal.

Flores-Ortega,

. The Supreme Court further

explained that by “consult” it meant that defense counsel advised

defendant about the advantages and disadvantages of taking an

appeal, “and [made a ] reasonable effort to discover the

defendant’s wishes.”

I have no doubt that Attorney Saxe consulted with petitioner

about the possibility of an appeal. And, I have no doubt that

petitioner communicated, on different occasions within the ten

day appeal period, that he wished to forego an appeal. And, I am

3 satisfied that petitioner understood that the likelihood of

success on appeal was minimal.

After all, in the underlying criminal case, petitioner

entered a knowing, intelligent, and voluntary plea of guilty,

pursuant to a negotiated plea agreement of the so-called

“binding” type. The plea agreement called for a specific

sentence; if a more severe sentence was imposed, petitioner was

entitled to withdraw his plea. Petitioner was in fact sentenced

within the limits of his bargain with the prosecution, so his

plea remained unassailable. Needless to say, a criminal

conviction based upon a provident plea of guilty, made pursuant

to a plea agreement for a specific sentencing range, which

results in the sentence bargained for, all tends to reduce the

scope of potentially appealable issues and indicates that “the

defendant seeks an end to the judicial proceedings.”

.

Ordinarily, then, relief would be summarily denied. But a

number of factors in this case militate in favor of a closer

look. First, petitioner had ten (10) days in which to file an

appeal of his conviction and sentence. Fed. R. App. P.

4 4(b)(1)(a). Needless to say, accurate time computation under the

federal rules often requires both time and a fair amount of

patience. Nevertheless, for reasons that will become clear, it

is necessary, before proceeding further, to accurately determine

just when the ten day appeal window closed in this case.

Having carefully reviewed the record and the applicable

procedural rules, it is evident that the appeal period expired on

Monday, December 1 0 , 2001, but not for the reasons assumed by

counsel and the court during the hearing. That conclusion is

based on the following analysis. Petitioner was sentenced on

Monday, November 2 6 , 2001. Judgment was entered on Tuesday,

November 2 7 , 2001, but an amended judgment was subsequently

entered on Thursday, November 2 9 , 2001. To determine when the

10-day appeal window closed, applying the current iteration of

Fed. R. App. P. 26 (a) ( 2 ) , one must count ten days from November

2 9 , excluding the starting day (November 29th) and excluding

intermediate Saturdays, Sundays, and legal holidays, because the

period of time being computed is “less than 11 days.” Fed. R.

App. P. 26(a)(2). Under the current rule, then, the ten day

appeal period would have expired on Thursday, December 1 3 , 2001.

5 However, Rule 26(a)(2) was amended in 2002 to resolve an

inconsistency between the Federal Rules of Criminal Procedure and

Federal Rules of Appellate Procedure, which computed time

differently.

In 2001, at the time of petitioner’s conviction and before

the amendments became effective, Fed. R. App. P. 26(a)(2)

excluded intermediate Saturdays, Sundays, and legal holidays from

the time computation only when the period being computed was

“less than 7 days.” Under that version of the rule, then, the

ten day appeal period, counted from entry of the amended

judgment, would have expired on December 9, 2001. But, December

9, 2001, was a Sunday, and Fed. R. App. P. 26(a)(3) instructs

that if the last day is a Sunday, it is also excluded. S o , under

the then-applicable rules, the period in which petitioner could

have filed an appeal as of right expired the next day - on

Monday, December 1 0 , 2001.

Attorney Saxe consulted with petitioner about an appeal both

before and at sentencing on November 2 6 , 2001, advising

petitioner of his right to file an appeal, and generally advising

6 him of counsel’s opinion that there were no meritorious appellate

issues. That i s , Saxe told petitioner that, in his opinion,

there was nothing to appeal. Counsel also made a reasonable

effort at that time to discover petitioner’s wishes regarding an

appeal and, quite understandably, petitioner expressed his lack

of interest in taking an appeal, as well as his agreement that an

appeal should not be pursued, no doubt recognizing that he had

received the benefit of his plea bargain and there were no

meritorious issues.

Consistent with that circumstance, during the ten days

following sentencing, counsel received a letter from petitioner

that did not mention any interest in an appeal, and he had one or

two telephone conversations with petitioner during which

petitioner did not bring up the matter of an appeal. On

Thursday, December 6, 2001, petitioner again called counsel, but

this time he did mention a possible appeal, asking, in substance,

“What about this appeal thing?” Again, counsel discussed the

matter of an appeal with petitioner, and again, after discussing

the issue, petitioner conveyed his lack of interest in filing an

appeal; he did not instruct counsel to file an appeal.

7 On Monday, December 1 0 , 2001 – the last day on which an

appeal could be filed as a matter of right – Saxe arrived at his

office and found a letter from petitioner dated December 2 , 2001,

but postmarked December 7 , 2001 (i.e., it was mailed after the

December 6 telephone conversation). In that letter petitioner

wrote: “You also should appeal the sentence so file for it.”

Rather than simply file a notice of appeal (which he readily

conceded could be done in a matter of minutes, with little

effort), Saxe called petitioner at the Merrimack County House of

Correction to inquire about his contradictory written statement

regarding filing an appeal.

Saxe advised petitioner that if he indeed wanted Saxe “to

try to file an appeal at that point,” he would do s o . See

Affidavit of Jonathan Saxe, Esq., at para. 9 (document n o . 20)

(emphasis supplied). Saxe conceded that, at that time, he

thought the appeal period had already expired on December 6, or

thereabouts, probably calculating ten calendar days from the

sentencing date (November 26) rather than from the date of the

amended judgment (November 2 9 ) . During that conversation Saxe

did not explicitly tell petitioner that the appeal period had

8 expired, but it seems more likely than not that Saxe’s

misunderstanding colored his discussion with and the advice given

to petitioner. It bears noting that Saxe also did not expressly

tell petitioner that the appeal period was still open, and that

if he wanted to appeal, an appeal was easily had. After

discussing the matter again, Saxe says he was left with the clear

impression that petitioner had plainly and unambiguously

expressed his understanding that there were no meritorious issues

and had unambiguously communicated his decision not to pursue an

appeal.

Later that afternoon, Saxe received yet another letter from

petitioner, this one dated and postmarked December 8 (i.e., it

was written and mailed before that morning’s telephone

conversation but after the December 6 conversation). In that

letter petitioner wrote “I told you to file an appeal twice

before the (10) days were u p . But you said there was no base

[sic] for i t . But I told you to do it anyway” (emphasis added).

Saxe did not make further inquiry of petitioner after receiving

that letter, since the letter had obviously been written and

mailed before the telephone conversation they had just had that

9 morning, in which Saxe understood petitioner to have again

decided not to pursue an appeal. The December 8 letter suggests,

of course, that petitioner also thought the ten day appeal period

had already expired when he wrote the letter, a misunderstanding

likely rooted in Saxe’s own misunderstanding, and in the December

6 discussion.

About eleven days later, Saxe received yet another letter

from petitioner, this one dated December 18th and postmarked

December 20th. In that letter petitioner reiterated his earlier

statement: “I also told you to file for an appeal twice before

the (10) days were u p . But you said there was no base [sic] for

it. But I told you to do it anyway.” Saxe, obviously upset,

responded by letter dated December 2 1 , 2001, in which he reviewed

the history of the interaction between them (from Saxe’s

perspective) relative to an appeal, and asserted that:

Every discussion that we had concerning the issue of an appeal, whether it was on the phone or in person, ended with a clear and unambiguous position on your part that you did not want me to file an appeal. You were simply not interested in appealing your case. Your most recent letters are shamefully dishonest and manipulative. . . . You elected not to file an appeal and conveyed that decision to m e . The appeal period is passed. My representation of you has concluded.

10 Discussion

The record in this case lends credence to Saxe’s assessment

of petitioner’s penchant for dishonesty and manipulation.

Petitioner’s credibility is weak, to say the least. Whether his

obvious difficulties in that regard are malevolent or

pathological is hard to say. But, there can be no doubt that

petitioner’s prolific and self-contradictory pleadings and

letters reveal him to be among the most difficult defendants to

represent. Without doubt, he continually confronted Saxe with

mixed signals and blatantly contradictory statements regarding

the handling of his case.

Nevertheless, it does appear that petitioner directed

counsel, in writing, to appeal (“You also should appeal the

sentence so file for it.”) at a time when an appeal of right was

still available to him (i.e., the letter received by Saxe on

December 1 0 , 2001). Saxe could have and should have filed a

notice of appeal on December 1 0 . I do not fault Saxe for calling

petitioner to discuss his apparent change of heart, and do not

doubt the sincerity of Saxe’s impression that petitioner, during

that conversation, yet again seemed to change his mind. But, it

11 is not altogether clear that petitioner did change his mind (he

says he did n o t ) . And, it seems that he did not change his mind

after full and adequate consultation – that i s , after being

accurately advised of the situation regarding the appeal period,

which was still open although Saxe thought it had expired. If

petitioner did acquiesce in abandoning his right to file an

appeal, it is more probable than not that he abandoned that

right, on December 1 0 , based in substantial part on his

misunderstanding (a misunderstanding shared by Saxe) that the

appeal period had already expired anyway, when it had not. If

Saxe had said to petitioner, on December 1 0 , “The appeal period

is still open, if you wish I will immediately note an appeal”

(rather than that he would “try” to file an appeal “at that

point” – i.e., the period having expired), then petitioner likely

would have directed him to “file for it,” thereby obtaining

appellate review.

The difficulty here arises from the fact that the appeal

period was not correctly calculated by counsel in the first

instance. Nor was it adequately explained to petitioner, during

either the December 6 or December 10 consultations, that an

12 appeal of right could be had merely by asking. Had counsel been

aware that the time in which to appeal was still open on December

1 0 , when he got petitioner’s letter directing him to appeal,

counsel would have likely followed his usual practice o f , as he

said, filing a notice of appeal whenever a client wishes to

appeal, without regard to the absence of meritorious issues.

And, had counsel correctly calculated the expiration of the

appeal period, his discussion with petitioner on December 10

would likely have (and should have) included specific advice to

the effect that the appeal period was still open.

I am persuaded that had accurate advice been given regarding

the open appeal period, this petitioner would have elected to

pursue an appeal, given his often repeated view that issues of

one sort or another exist warranting review. That is not to say

that his taking an appeal would have constituted a rational or

reasonable decision, but only that this petitioner would have

chosen to appeal (the court is not unaware that petitioner faces

deportation, and may think an appeal will delay that outcome).

That petitioner has a well-documented habit of vacillation and

self-contradiction makes it less, not more, likely that his

13 statements regarding abandoning his right to appeal were ever

firm. He was, of course, entitled to change his mind as often as

he liked, up until the appeal period expired. He directed an

appeal by letter received by counsel on December 1 0 , and although

he may have changed his mind yet again after discussing the

matter with counsel, that change of mind was likely the product,

in substantial part, of a basic misunderstanding (shared by

counsel) as to whether an appeal of right was still available,

and was not based upon correct advice that should have been given

regarding the open appeal period. Petitioner’s subsequent

complaint also supports the conclusion that he thought the appeal

period had already expired before December 1 0 .

Accordingly, I find that petitioner is entitled to limited

relief, in the nature of affording him ten (10) days from the

date of this order to file a notice of appeal in his underlying

criminal case, if he chooses to do s o . Attorney Shklar shall

consult with petitioner about his right to appeal and, if so

directed, shall file a notice of appeal. A copy of this order

shall be faxed to Attorney Shklar.

14 SO ORDERED.

Steven J. McAuliffe United States District Judge

October 3 1 , 2003

cc: Michael C . Shklar, Esq. (Faxed to 863-3970) Peter E . Papps, Esq. Jonathan R. Saxe, Esq.

15