     10-3299
     United States v. Durham


                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 5th day of March, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                ROSEMARY S. POOLER,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               10-3299
17
18       SPENCER B. DURHAM,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Paúl Camarena, North & Sedgwick,
23                                             L.L.C., Chicago, Ill.
24
25       FOR APPELLEE:                         Eugenia A.P. Cowles, Gregory L.
26                                             Waples, Assistant United States
27                                             Attorneys, for Tristram J.

                                                  1
 1                              Coffin, United States Attorney
 2                              for the District of Vermont,
 3                              Burlington, Vt.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the District of Vermont (Sessions, C.J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Spencer Durham appeals the denial of his motion, filed
13   pursuant to 28 U.S.C. § 2255, seeking to vacate his sentence
14   for obstruction of mail. We assume the parties’ familiarity
15   with the underlying facts, the procedural history, and the
16   issues presented for review.
17        “A defendant claiming ineffective assistance must (1)
18   demonstrate that his counsel’s performance ‘fell below an
19   objective standard of reasonableness’ in light of
20   ‘prevailing professional norms,’ . . . and (2)
21   ‘affirmatively prove prejudice’ arising from counsel’s
22   allegedly deficient representation.” United States v.
23   Cohen, 427 F.3d 164, 167 (2d Cir. 2005) (quoting Strickland
24   v. Washington, 466 U.S. 668, 688, 693 (1984)). “[A] lawyer
25   who disregards a defendant’s specific instruction to file a
26   notice of appeal acts in a manner that is professionally
27   unreasonable . . . .” Campusano v. United States, 442 F.3d
28   770, 773 (2d Cir. 2006) (citing Roe v. Flores-Ortega, 528
29   U.S. 470, 477 (2000)). Durham’s counsel did not file a
30   notice of appeal despite Durham’s timely request.
31        However, after the deadline to file such a notice
32   passed, but at a time when his counsel could still have
33   filed a motion for an extension, Fed. R. App. P. 4(b)(4),
34   Durham withdrew his request. Accordingly, Durham is not
35   entitled to relief. Cf. Campusano, 442 F.3d at 773
36   (“[W]here counsel’s error leads to ‘the forfeiture of a
37   proceeding itself,’ prejudice will be presumed.” (quoting
38   Flores-Ortega, 528 U.S. at 483-84)).
39
40        Finding no merit in Durham’s remaining arguments, we
41   hereby AFFIRM the judgment of the district court.
42
43                              FOR THE COURT:
44                              CATHERINE O’HAGAN WOLFE, CLERK
45
46


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