15-4179-cr
United States v. Mitchell

                                 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.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
1st day of February, two thousand nineteen.

Present:          ROSEMARY S. POOLER,
                  REENA RAGGI,
                  DEBRA ANN LIVINGSTON,
                            Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

                                   Appellee,

                            v.                                                  15-4179-cr

JOSEPH MITCHELL, a/k/a BLACKOUT, a/k/a BLACK, a/k/a JAH,

                        Defendant-Appellant.1
_____________________________________________________

Appearing for Appellant:           David R. Morabito, East Rochester, NY.

Appearing for Appellee:            Tiffany H. Lee, Assistant United States Attorney, for James P.
                                   Kennedy, Jr., United States Attorney for the Western District of
                                   New York, Rochester, NY.

Appeal from an order the United States District Court for the Western District of New York
(Geraci, C.J.).
1
    The Clerk of Court is directed to amend the caption as above.
        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED and the
case is REMANDED for further proceedings.

         Appellant Joseph Mitchell appeals from the December 23, 2015, order of the United
States District Court for the Western District of New York (Geraci, C.J.), which denied
Mitchell’s petition for writ of habeas corpus vacating his conviction due to ineffective assistance
of counsel in so far as the petition concerned his attorney’s failure to file an appeal. We assume
the parties’ familiarity with the underlying facts, procedural history, and specification of issues
for review.

         On March 28, 2013, Mitchell entered into a plea agreement via which he waived his right
to appeal any component of a sentence that fell within the Guidelines range and to collaterally
attack such a sentence if unknown facts or a change in the law would justify a lower sentence.
The Guidelines range for the charges to which Mitchell pled guilty was 270 to 322 months. The
district court subsequently sentenced Mitchell principally to a term of imprisonment of 300
months, a within-Guidelines sentence.

        Mitchell has since claimed that he repeatedly asked his counsel, Paul MacAulay, to file a
notice of appeal on his behalf and that MacAulay failed to do so. In September of 2013, Mitchell
filed a pro se motion seeking additional time to file an appeal due to MacAulay’s failure to file
an appeal, which the district court denied after finding it lacked jurisdiction to grant the
extension. Mitchell appealed that decision, and this Court remanded the case to the district court,
instructing (1) that Mitchell’s motion for an extension of time should be construed as a motion
under 28 U.S.C. § 2555 based on ineffective assistance of counsel and (2) that the district court
should hold an evidentiary hearing pursuant to Campusano v. United States, 442 F.3d 770, 776
(2d Cir. 2006), to determine whether Mitchell asked his attorney to file a notice of appeal. In so
ruling, this Court expressly stated that such a section 2255 petition would not bar a later section
2255 motion challenging the conviction itself.

        The district court subsequently held an evidentiary hearing to determine whether Mitchell
had asked his attorney to file a notice of appeal. At the hearing, Mitchell, his sister, his mother,
and his father testified. The government also called one witness—attorney MacAulay. At the
conclusion of the hearing, the district court noted that the question of whether Mitchell requested
that MacAulay file a notice of appeal ultimately turned on an assessment of the witnesses’
credibility. Finding that Mitchell and his family members were not credible, the district court
denied Mitchell’s motion to vacate the judgment against him and to file a late appeal. Mitchell
appeals that order.

        In Roe v. Flores-Ortega, the Supreme Court reiterated that “a lawyer who disregards
specific instructions from the defendant to file a notice of appeal acts in a manner that is
professionally unreasonable.” 528 U.S. 470, 477 (2000).2 Where counsel’s error in this regard
2
  The holding of Flores-Ortega was not this well-established principle but “that counsel has a
constitutionally imposed duty to consult with the defendant about an appeal when there is reason
to think either (1) that a rational defendant would want to appeal . . . or (2) that this particular

                                                 2
leads to “the forfeiture of a proceeding itself,” a court will presume prejudice. Id. at 483-84. In
Campusano v. United States, we therefore held that, even if a client has signed a plea agreement
waiving his appellate rights, “where counsel does not file a requested notice of appeal and fails
to file an adequate Anders brief, courts may not dismiss the hypothetical appeal as frivolous on
collateral review.” 442 F.3d at 775. As in the present case, the Court in Campusano remanded
the matter for an evidentiary hearing without assessing the merits of the appeal to determine
whether Campusano had asked his attorney to file an appeal, with instructions that if Campusano
did, he was entitled to a direct appeal. Id. at 777.

        We review the district court’s factual findings at an evidentiary hearing pursuant to
Campusano for clear error. See United States v. Becker, 502 F.3d 122, 127 (2d Cir. 2007). We
conclude that the district court did not commit clear error in finding that Mitchell did not ask
MacAulay to file an appeal. The district court based its conclusion on its finding that Mitchell
and his family members were not credible. The testimony does not belie this determination.

         At the hearing, Mitchell’s sister, Natoya Mitchell, testified that she sent emails to
MacAulay regarding “the conversation that the judge had as it relates to notice to appeal and the
whole process of filing an appeal.” Special App’x at 7. But none of Natoya Mitchell’s emails
with MacAulay referenced filing an appeal—the emails referenced only Natoya Mitchell’s
request for the transcripts to confirm a statement of the district court. Special App’x at 11.
Meanwhile, Mitchell’s mother, Mary Peoples, struggled to recall details of her conversations
with MacAulay. Special App’x at 16. On direct, she stated that MacAulay said he would file an
appeal in Mitchell’s case but on cross-examination testified that she did not remember
MacAulay’s response. Compare Special App’x at 17 (“His response was he would do—he would
file the appeal, but how soon he didn’t say.”), with Special App’x at 21 (“Q: And what again did
Mr. MacAulay tell you when you told him that you needed to file an appeal? A: I’m trying to
remember. I don’t remember.”). Mitchell himself gave inconsistent testimony. He first testified
that he had discussed appealing with MacAulay “a few days before [sentencing], the day [of the
sentencing], and after.” Special App’x at 38. But just moments later he testified that he did not
have any conversations with MacAulay after sentencing about filing an appeal. Special App’x at
38. Moreover, Mitchell waffled over what precisely he wanted to appeal. He first said he told
MacAulay he “would definitely want to appeal the sentence.” Special App’x at 45. He amended
this statement, testifying that he wanted to “appeal under ineffective assistance.” Special App’x
at 46. He later flipped again, testifying that he wanted to appeal “any future change in the law.”
Special App’x at 49.3

defendant reasonably demonstrated to counsel that he was interested in appealing.” 528 U.S. at
480. Though Mitchell’s testimony raises the question of whether MacAulay consulted with him
about an appeal, Mitchell has not raised such a claim on this appeal, and we therefore do not
apply the holding of Flores-Ortega to this appeal.
3
  It is unclear from Mitchell’s testimony if he wanted to appeal his conviction based on a future
change in the law or if he wanted to appeal the fact that his plea agreement contained a provision
waiving his right to appeal a future change in the law. When Mitchell made this statement, he
was expressing dissatisfaction with the inclusion of the waiver provision in his plea agreement,
indicating he might have intended the latter. Either interpretation of his statement would be
inconsistent with his first two proffered reasons for appealing.


                                                 3
        These excerpts of the testimony at the Campusano hearing provide sufficient reason for
the district court to question the witnesses’ credibility. Certainly, we are not “left with the
definite and firm conviction that a mistake has been committed.” United States v. Yu, 285 F.3d
192, 199 (2d Cir. 2002) (internal quotation marks omitted). Because the district court did not
commit clear error in finding that Mitchell had not directed MacAulay to file an appeal on his
behalf, we affirm its denial of Mitchell’s application to file a late notice of appeal.

         Although the district court’s order denied only the portion of Mitchell’s motion
“challeng[ing] his conviction based upon the alleged failure by his former counsel to file a notice
of appeal,” it is unclear if the district court’s ruling denying Mitchell’s “application in all
respects” included a denial of the new claims that Mitchell raised in the section 2255 petition that
he filed after this Court remanded his case. Decision & Order, United States v. Mitchell, No. 11-
cr-6019-FPG (W.D.N.Y. Dec. 23, 2015), ECF No. 151. Nothing in this record provides the
district court with reason to deny Mitchell’s additional claims. Accordingly, we remand for the
district court to either address Mitchell’s additional section 2255 claims or clarify the basis for
rejecting those claims.

        We have considered the remainder of Mitchell’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED and the case is
REMANDED for further proceedings consistent with this order.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




                                                 4
