Daragjati v. United States , 598 F. App'x 50 ( 2015 )

14-77
Daragjati v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 19th day of March, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 JESSE M. FURMAN,*
10 District Judge.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 MICHAEL DARAGJATI,
14 Petitioner-Appellant,
15
16 -v.- 14-77
17
18 UNITED STATES OF AMERICA,
19 Respondent-Appellee,
20
21 ERIC FRANZ, RONALD PAUL FISCHETTI,
22 Respondents.
23 - - - - - - - - - - - - - - - - - - - -X
*
Judge Jesse M. Furman, of the United States District
Court for the Southern District of New York, sitting by
designation.
1
1 FOR APPELLANT: Michael Daragjati, pro se,
2 Lisbon, Ohio.
3
4 FOR APPELLEE: Paul Tuchmann, Peter A. Norling,
5 for Loretta E. Lynch, United
6 States Attorney for the Eastern
7 District of New York, Brooklyn,
8 New York.
9
10 Appeal from a judgment of the United States District
11 Court for the Eastern District of New York (Kuntz, J.).
12
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14 AND DECREED that the judgment of the district court be
15 VACATED and REMANDED.
16
17 Michael Daragjati, pro se, appeals from the December 5,
18 2013 judgment of the United States District Court for the
19 Eastern District of New York (Kuntz, J.), denying his motion
20 pursuant to 28 U.S.C. § 2255 to vacate his 57-month
21 sentence. We granted a certificate of appealability as to
22 (i) the district court’s “fail[ure] to determine whether
23 Appellant had asked counsel to file a notice of appeal,” and
24 (ii) the district court’s “ruling that counsel was not
25 constitutionally defective for failing to object to
26 unsubstantiated allegations at sentencing and investigate
27 the records containing those allegations.” (Order of June
28 30, 2014.) We assume the parties’ familiarity with the
29 underlying facts, the procedural history, and the issues
30 presented for review.
31
32 In reviewing a denial of relief under § 2255, we review
33 the district court’s findings of fact for clear error and
34 conclusions of law de novo. Triana v. United States, 205
35 F.3d 36, 40 (2d Cir. 2000). “The question of whether a
36 defendant’s lawyer’s representation violates the Sixth
37 Amendment right to effective assistance of counsel is a
38 mixed question of law and fact that is reviewed de novo.”
39 LoCascio v. United States, 395 F.3d 51, 54 (2d Cir. 2005)
40 (quoting United States v. Blau, 159 F.3d 68, 74 (2d Cir.
41 1998)). A claim for ineffective assistance of counsel
42 requires both that: (1) “counsel’s representation fell below
43 an objective standard of reasonableness,” Strickland v.
44 Washington, 466 U.S. 668, 688 (1984), and (2) “there is a
45 reasonable probability that, but for counsel’s errors, the
46 result of the proceeding would have been different,” id. at
47 694.
2
1 Daragjati asserts in connection with his § 2255 motion
2 that he timely communicated to his trial counsel a request
3 to file a notice of appeal, and that counsel failed to do
4 so. This claim is governed by the following principle:
5
6 [E]ven after a waiver [of the right to appeal], a
7 lawyer who believes the requested appeal would be
8 frivolous is bound to file the notice of appeal and
9 submit a brief pursuant to Anders v. California,
10 [386 U.S. 738 (1967)]. When counsel fails to do so,
11 we will presume prejudice, as required by Roe v.
12 Flores-Ortega, [528 U.S. 470 (2000)], and the
13 defendant will be entitled to a direct appeal
14 without any showing on collateral review that his
15 appeal will likely have merit.
16
17 Campusano v. United States, 442 F.3d 770, 771-72 (2d Cir.
18 2006). To give effect to this principle, whenever a § 2255
19 movant “claims that his attorney failed to file a requested
20 notice of appeal,” the district court is required to hold a
21 hearing “to determine whether the client requested the
22 appeal . . . without assessing the merits of the requested
23 appeal.” Id. at 776. That hearing need not be testimonial.
24 See id. (citing Chang v. United States, 250 F.3d 79, 85-86
25 (2d Cir. 2001)).
26
27 The district court denied Daragjati’s § 2255 motion
28 without holding the hearing required by Campusano. The
29 court expressed the view that a direct appeal would have
30 been meritless because of the appeal waiver, and it made no
31 express finding as to whether Daragjati requested a notice
32 of appeal. As the parties presently agree, this deviation
33 from Campusano’s prescription was error. We therefore
34 vacate.
35
36 On remand, the district court must determine as a
37 matter of fact whether Daragjati requested a notice of
38 appeal, without regard for the anticipated merit of any
39 appeal. If in that context the district court finds that
40 “counsel fail[ed] to file a requested appeal,” then
41 Daragjati “is entitled to a new [direct] appeal without
42 showing that his appeal would likely have merit.” Flores-
43 Ortega, 528 U.S. at 477 (alterations omitted) (quoting
44 Peguero v. United States, 526 U.S. 23, 28 (1999)).
45
46 We express no view on the proper outcome of that
47 proceeding. If, however, a new judgment is entered,
3
1 Daragjati would have the opportunity to directly appeal his
2 sentence. In such an appeal, Daragjati would have the right
3 to appellate counsel, who would either “support
4 [Daragjati’s] appeal to the best of his ability” or, if
5 counsel believes any direct appeal to be frivolous, submit a
6 “brief referring to anything in the record that might
7 arguably support the appeal.” Anders, 386 U.S. at 744.
8 Given Daragjati’s pro se status on this § 2255 appeal, we
9 decline at this juncture to address his claim that his
10 counsel was ineffective at sentencing: if Daragjati
11 ultimately brings a direct appeal, that appeal will better
12 present this claim; and if the district court’s finding on
13 remand does not permit a direct appeal, then Daragjati may
14 renew this claim on appeal from the district court’s denial
15 of his § 2255 motion.1
16
17 For the foregoing reasons, we hereby VACATE the
18 judgment of the district court and REMAND for proceedings
19 consistent with this order and Campusano, 442 F.3d at 776.2
20 Any appeal following this remand shall return to this panel.
21
22
23 FOR THE COURT:
24 CATHERINE O’HAGAN WOLFE, CLERK
25
26
27
1
If on remand the district court enters a new judgment
denying Daragjati’s § 2255 petition, we direct the district
court to simultaneously issue a certificate of appealability
with respect to (at a minimum) its ruling that counsel was
not constitutionally defective for failing to object to
unsubstantiated allegations at sentencing and investigate
the records containing those allegations.
2
We decline Daragjati’s request to remand the action
to a different district court judge.
4