JOSE MEJICANOS v. UNITED STATES (2024)

REPORT AND RECOMMENDATION TO HON. JED S. RAKOFF: MOTION TO VACATE, SET ASIDE, OR CORRECT CONVICTION AND SENTENCE

Petitioner Jose Mejicanos (“Mejicanos”) is currently serving a 180-month prison sentence following his conviction under federal law for conspiracy to distribute cocaine. Proceeding pro se, Mejicanos now moves to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C. § 2255, the statute providing a vehicle for prisoners to collaterally challenge federal convictions and sentences. Mejicanos claims that his counsel was ineffective, thereby depriving him of the right to effective assistance of counsel under the Sixth Amendment. For the reasons set forth below, I recommend that Mejicanos's judgment be VACATED based on his fourth claim for relief and that the first three claims of the petition be DISMISSED WITHOUT PREJUDICE.

Factual Background

An investigation conducted by the Drug Enforcement Administration revealed that Mejicanos led a drug-trafficking conspiracy in which hundreds of kilograms of cocaine were concealed in functioning car batteries and imported into the United States for distribution throughout the northeast. (See CR Dkt. 74 at 6-8.¹ ) On February 14, 2020, the Government filed an indictment charging Mejicanos with conspiracy to distribute and possess with the intent to distribute 5 kilograms and more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (“Count 1”). (CR Dkt. 2.) Mejicanos was arrested on February 24, 2020. (CR Dkt. 74 ¶ 28.)

On May 2, 2022, pursuant to a written plea agreement, Mejicanos pled guilty to a lesser-included charge of Count 1 of conspiracy to distribute and possess with the intent to distribute 500 grams and more of cocaine, in violation of 21 U.S.C. § 841(b)(1)(B). (Dkt. 74 ¶ 4 & n.1.) As part of his plea agreement, Mejicanos agreed to waive his right to appeal his conviction and sentence. (See CR Dkt. 70 at 8.) On September 15, 2022, Mejicanos was sentenced to 180 months’ incarceration followed by four years’ supervised release. (See CR Dkt. 84.)

Prior to sentencing, Mejicanos alleges that he implored his attorney to file a notice of appeal on his behalf at least three times but his attorney never carried out his request. (Dkt. 1 (“Motion”) at 12.) On September 29, 2022, Mejicanos's attorney informed Mejicanos's wife that he had sent the notice of appeal to the chambers of Judge Rakoff, the judge presiding over his criminal proceeding, and that the notice was “on the judge's desk.” (Id. at 12 and Ex. C at ECF 25.) No notice of appeal ever appeared on the docket. Mejicanos's reply briefings describe his making “repeated inquiries to his former counsel about the status of his appeal” following sentencing, and that counsel had given him “repeated assurances that the appeal was progressing.” (Reply ² at 3; see also Addendum ³ at 3-4.) Due to his attorney's alleged misinformation, Mejicanos did not discover until October 2023, with the assistance of a new “legal representative,” that the notice of appeal in fact never had been filed. (Reply at 2; Addendum at 3.)

Seventeen months elapsed between Mejicanos's conviction becoming final and his filing the instant motion.⁴ However, only five months elapsed between the time Mejicanos discovered that his attorney failed to appeal, and the date Mejicanos filed the instant motion.

Procedural Background

On March 5, 2024, Mejicanos, proceeding pro se, filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (See Mot.) The Motion asserts four arguments for vacatur, all grounded in claims of ineffective assistance of counsel. Mejicanos alleges that his attorney rendered constitutionally ineffective assistance by: (1) coercing him into pleading guilty; (2) failing to inform the Government that Mejicanos was willing to share information regarding other participants in the alleged conspiracy; (3) failing to object to certain sentencing enhancements; and (4) failing to file a notice of appeal as requested. On May 13, 2024, the Government filed its opposition, arguing that the first three claims are time-barred and do not satisfy the two-part test for ineffective assistance of counsel as set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). (Opp. Mem.⁵ at 3.) As to the fourth claim, however, the Government “agrees that Mejicanos's notice of appeal should be docketed.” (Id. at 13.)

Legal Standards

A. 28 U.S.C. § 2255 Motions

Section 2255 provides an individual in federal custody with a limited opportunity to collaterally challenge the legality of his sentence. See United States v. Addonizio, 442 U.S. 178, 184-85, 99 S. Ct. 2235, 2240 (1979). To obtain relief under 28 U.S.C. § 2255, the movant must show that his sentence: (1) “was imposed in violation of the Constitution or the laws of the United States”; (2) was entered by a court “without jurisdiction to impose the sentence”; (3) exceeded the maximum detention authorized by law; or (4) is “otherwise subject to collateral attack.” See 28 U.S.C. § 2255(a).

Such relief is available only for a constitutional error “that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” FNU LNU v. United States, No. 12-CV-7897, 2015 WL 5893723, at *4 (S.D.N.Y. Oct. 7, 2015) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)); see also Medrano v. United States, No. 13-CV-1604, 2015 WL 848551, at *12 (S.D.N.Y. Feb. 27, 2015). As the Second Circuit has explained, “[t]he reasons for narrowly limiting the relief permitted under § 2255 – a respect for the finality of criminal sentences, the efficient allocation of judicial resources, and an aversion to retrying issues years after the underlying events took place – are ‘well known and basic to our adversary system of justice.’ ” Bokun, 73 F.3d at 12 (quoting Addonizio, 442 U.S. at 184).

B. Ineffective Assistance Of Counsel

To prevail on an ineffective assistance of counsel claim, the movant must show that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. Such a claim is analyzed using the two-prong test set forth in Strickland, which places the burden on the petitioner to “(1) demonstrate that his counsel's performance ‘fell below an objective standard of reasonableness’ in light of ‘prevailing professional norms’ and (2) ‘affirmatively prove prejudice’ arising from counsel's allegedly deficient representation.” Carrion v. Smith, 549 F.3d 583, 588 (2d Cir. 2008) (citation omitted); see also Santone v. Fischer, 689 F.3d 138, 154 (2d Cir. 2012). “The Strickland standard for assessing ineffective assistance of counsel on Section 2255 motions is the same.” United States v. Wollaston, No. 23-CV-9153 (RWL), 2024 WL 3928717, at *7 n.13 (S.D.N.Y. Aug. 22, 2024) (citation omitted).

When counsel fails to follow a defendant's instruction to file a notice of appeal, counsel necessarily “acts in a manner that is professionally unreasonable” and deprives the defendant altogether of an appeal – a “critical stage of a judicial proceeding.” Roe v. Flores-Ortega, 528 U.S. 470, 477, 483, 120 S. Ct. 1029, 1035, 1038 (2000) (applying Strickland). This forfeiture “mandates a presumption of prejudice,” resulting in “a successful ineffective assistance of counsel claim entitling [defendant] to an appeal” without a showing that his claims likely would have been meritorious. Id. at 483-84; accord United States v. Campusano, 442 F.3d 770, 771-72 (2d Cir. 2006). This rule applies regardless of whether defendant voluntarily waived his right to appeal pursuant to a plea agreement. See Garza v. Idaho, 586 U.S. 232, 237, 139 S. Ct. 738, 744 (2019); Campusano, 442 F.3d at 777 (“A defendant who executes a waiver may sign away the right to appeal, but he or she does not sign away the right to the effective assistance of counsel”).

Once a petitioner successfully demonstrates that his or her counsel rendered ineffective assistance by failing to file a requested notice of appeal, the district court may conduct a hearing pursuant to § 2255 to determine whether petitioner in fact requested his attorney to file a notice of appeal. Id. at 776. The district court has discretion not to hold a hearing, however, if it concludes that the record contains enough material to decide the issues such that “a hearing would not offer any reasonable chance of altering its view of the facts.” Chang v. United States, 250 F.3d 79, 86 (2d Cir. 2001) (weighing the benefits of an evidentiary hearing against the “needless expenditure of judicial resources, the burden on trial counsel and the government, and perhaps the encouragement of other prisoners to make similar baseless claims”); see also Pham v. United States, 317 F.3d 178, 184 (2d Cir. 2003) (endorsing a “middle road” approach to deciding disputed facts based on the written record rather than conducting a hearing).

Discussion

As the Government concedes, Mejicanos is entitled to relief under his fourth claim based on his attorney's failure to properly file a direct appeal as requested by Mejicanos. The Court first explains why and then addresses the appropriate remedy.

A. Counsel's Failure To File An Appeal As Requested Merits Relief

The Court begins its analysis with Mejicanos's fourth claim – that his attorney rendered constitutionally ineffective assistance by failing to file a notice of appeal despite Mejicanos's repeated requests. The Government does not oppose the fourth claim and asserts that Petitioner's notice of appeal should be docketed so that he can pursue his direct appeal. (Opp. Mem. at 1.) No hearing is needed as the facts are clearly established.

As an initial matter, and although not briefed by the parties, the fourth claim is timely. Motions made under 28 U.S.C. § 2255 are subject to a one-year statute of limitations, which begins running, as applicable here, on the later of either “the date on which the judgment of conviction becomes final,” § 2255(f)(1), or “the date on which facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” § 2255(f)(4). The latter provision applies here.

The time at which facts supporting the fourth claim could have been discovered through the exercise of due diligence was October 2023, when Mejicanos in fact learned of the lapse. Mejicanos's “repeated inquiries to his former counsel about the status of his appeal” constituted sufficient due diligence. (Addendum at 3); see also Flores-Ortega, 528 U.S. at 477 (“a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice”). Perhaps Mejicanos could have tested the veracity of his attorney's assurances and ascertained the true status of his appeal sooner, but § 2255(f)(4) “does not require the maximum feasible diligence, only ‘due,’ or reasonable, diligence.” See Wims v. United States, 225 F.3d 186, 190 n.4 (2d Cir. 2000) (citation omitted) (finding that, where petitioner filed § 2255 motion 17 months after judgment became final, “due diligence plainly did not require [petitioner] to check up on his counsel's pursuit of an appeal on ․ the very day on which [petitioner's] conviction became final”).

Next, the Court finds that Mejicanos's attorney never “filed” the notice of appeal in accordance with Federal Rule of Appellate Procedure 4(b)(1)(A). Mejicanos's attorney informed the Government that he “attempted to file a notice of appeal on September 28, 2022” by emailing it and mailing a physical copy to Judge Rakoff's chambers. (See Opp. Mem. at 1 and Ex. A (Sept. 28, 2022 email sent by Mejicanos's attorney).) That the appeal was never docketed, however, shows that counsel's attempted filing was insufficient. For the notice of appeal to have been considered “filed,” counsel had to file it electronically and receive notification of its receipt from the Clerk's Office in accordance with applicable local district court rules, here Local Civil Rule 5.2, made applicable to the criminal rules via Local Criminal Rule 1.1. See Franklin v. McHugh, 804 F.3d 627, 632 (2d Cir. 2015) (finding that counsel's paying the filing fee for notice of appeal on court's CM/ECF website but failing to submit and receive notice on confirmation page that notice of appeal had been “docketed, delivered and therefore ‘filed’ with the Clerk's Office” was not “filed” per Fed. R. App. P. 4). No notification of receipt appears on the docket.

The record is also clear that Mejicanos did in fact request that his attorney file a notice of appeal. In addition to his pleadings, Mejicanos states under oath that “[p]rior to sentencing, I insisted that counsel file a notice of appeal.” (CR Dkt. 1, Ex. A.) This is corroborated by his attorney's (albeit unsuccessful) attempts to file a notice of appeal seven days after sentencing. The Government does not dispute that Mejicanos made the request.

Given these findings, Flores-Ortega dictates the result here. Mejicanos has sufficiently demonstrated that he instructed his attorney to file a notice of appeal and that his attorney failed to do so. Prejudice is presumed, and Mejicanos has satisfied the requirements of Strickland. See Flores-Ortega, 528 U.S. at 477, 483-84.

In light of the clarity and lack of dispute in the record, a hearing is not needed to determine whether Mejicanos requested that his attorney file a notice of appeal. An evidentiary hearing in these circumstances “would not offer any reasonable chance of altering its view of the facts.” See Chang, 250 F.3d at 86; accord Collado v. United States, No. 17-CV-10087, 2018 WL 5847404, at *2 (S.D.N.Y. Nov. 8, 2018) (declining to conduct evidentiary hearing where government did not contest petitioner's assertion that his counsel failed to file requested notice of appeal). Since there are no disputed facts to decide, there is no reason to expend judicial resources on a hearing.

B. The Remedy

As Mejicanos has established ineffective counsel with respect to filing a notice of appeal, the Court turns to the relief to be granted. Courts have squarely addressed the proper remedy in cases of this nature: “[W]here a defendant's attorney fails to timely file a notice of appeal when his client so requests, the appropriate remedy is to remand to the district court with instructions to vacate the judgment and enter a new judgment from which a timely appeal can be made.” United States v. Medley, 300 F. App'x 14, 16 (2d Cir. 2008); accord United States v. Fuller, 332 F.3d 60, 65 (2d Cir. 2003) (instructing district court to “vacate the judgment and enter a new judgment from which a timely appeal may be taken”); see also Garcia v. United States, 278 F.3d 134, 138 (2d Cir. 2002); United States v. Boria, No. 17-CR-142, 2024 WL 81407, at *3 (S.D.N.Y. Jan. 8, 2024); Mena v. United States, No. 04-CV-6523, 2004 WL 2734454, at *4 (S.D.N.Y. Nov. 30, 2004). This remedy places Mejicanos “in the same position he would have been in but for the Sixth Amendment violation: he [is] given an avenue to pursue a direct appeal from his conviction and sentence.” See Wall v. United States, 619 F.3d 152, 154-55 (2d Cir. 2010); accord Boria, 2024 WL 81407, at *3 (“[Counsel]’s ineffective assistance requires the Court to afford [petitioner] a new opportunity for direct appeal – even if it ultimately amounts to no more than ‘an opportunity to lose’ ” (quoting Campusano, 442 F.3d at 777)).

Additionally, “[i]n light of the possibility that [his] collateral challenge under § 2255 will be mooted by the disposition of his direct appeal,” Mejicanos's first three claims should be denied without prejudice to refiling after the appeal process. See United States v. Sanchez, No. 12-CR-131, 2014 WL 764341, at *2 (S.D.N.Y. Feb. 25, 2014); accord United States v. Grullon, No. 96-CR-466, 1997 WL 739082, at *1 (S.D.N.Y. Nov. 25, 1997) (“absent extraordinary circumstances, a court does not entertain a § 2255 petition until a direct appeal has been decided”). His remaining claims are better suited for consideration on direct appeal. See Wall, 619 F.3d at 154-55 (“the district court should have dismissed those claims as premature instead of disposing of them on their merits”); Collado, 2018 WL 5847404, at *2 (“Because Petitioner is entitled to a direct appeal, the Court will not address the other claims raised in his petition”).

Conclusion

For the reasons stated above, I recommend that Mejicanos be granted relief with respect to his fourth claim and that the original judgment be vacated and a new one entered with the same conditions reflected in the judgment entered on September 21, 2022. Further, the first three claims of Mejicanos's petition should be dismissed without prejudice.

Procedure For Filing Objections

Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a) and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Any party shall have fourteen (14) days to file a written response to the other party's objections. Any such objections and responses shall be filed with the Clerk of Court, with courtesy copies delivered to the Chambers of the Honorable Jed S. Rakoff, United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any request for an extension of time for filing objections must be addressed to Judge Rakoff. Failure to file timely objections will result in a waiver of the right to object and will preclude appellate review.

FOOTNOTES

1.   “CR Dkt.” refers to the docket in the criminal proceeding, 20-CR-130; “Dkt.” refers to the docket in the instant civil proceeding, 24-CV-1890.

2.   “Reply” refers to Mejicanos's Reply Memorandum of Law in Support of his Motion, located at Dkt. 14.

3.   “Addendum” refers to Mejicanos's Addendum to his Reply Memorandum of Law, located at Dkt. 19.

4.   Because a notice of appeal was not filed within fourteen days of the entry of his judgment, Mejicanos's conviction became final on October 5, 2022. See Fed. R. App. P. 4(b)(1)(A)(I), 36(a).

5.   “Opp. Mem.” refers to the Government's Memorandum of Law in Opposition to Mejicanos's Motion, located at CR Dkt. 104.

ROBERT W. LEHRBURGER UNITED STATES MAGISTRATE JUDGE