     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
