17‐2715‐cr
United States v. Wright


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                    August Term 2018

            (Submitted: May 21, 2019                 Decided: December 19, 2019)

                                       No. 17‐2715‐cr

                          ––––––––––––––––––––––––––––––––––––

                               UNITED STATES OF AMERICA,

                                         Appellee,

                                            ‐v.‐

                                    ANDREW WRIGHT,

                                   Defendant‐Appellant.

                          ––––––––––––––––––––––––––––––––––––

Before:          LIVINGSTON, CARNEY, Circuit Judges, RAMOS, District Judge.

       Defendant‐Appellant Andrew Wright (“Wright”) filed a notice of appeal
with this Court more than three years after he was sentenced in the United States
District Court for the Western District of New York (Siragusa, J.) to 240 months’
imprisonment on two counts of assault on a law enforcement officer in violation
of 18 U.S.C. § 111(a)(1), (b). He argues that he was given unconstitutionally
ineffective assistance of counsel below, as his trial attorney failed to file a requested

        
       Judge Edgardo Ramos of the United States District Court for the Southern District
of New York, sitting by designation.


                                             1
notice of appeal on his behalf. As a result, he requests a remand to the district
court for entry of a new judgment from which he can take a direct appeal, under
the auspices of United States v. Fuller, 332 F.3d 60, 65 (2d Cir. 2003). We conclude
that Fuller does not apply here, as it is unclear whether Wright could have filed a
timely petition for habeas relief in the district court at the time he filed his untimely
notice of appeal with this Court. Given that answering this question requires
further factual development, we DISMISS Wright’s appeal as untimely, and
REMAND to the district court with instructions to convert Wright’s notice of
appeal into a petition for habeas relief and assess whether such petition would be
timely under 28 U.S.C. § 2255(f)(4).

FOR APPELLEE:                            Monica J. Richards, for James P. Kennedy,
                                         Jr., United States Attorney for the Western
                                         District of New York, Buffalo, NY, for United
                                         States of America.

FOR DEFENDANT‐APPELLANT:                 Arza Feldman, Feldman & Feldman,
                                         Uniondale, NY, for Andrew Wright.

DEBRA ANN LIVINGSTON, Circuit Judge:

      This case arises from an untimely notice of appeal. Defendant‐Appellant

Andrew Wright (“Wright”) was sentenced in the United States District Court for

the Western District of New York (Siragusa, J.) on May 2, 2014, to 240 months’

imprisonment, following a jury trial at which he was convicted of two counts of

assault on a law enforcement officer in violation of 18 U.S.C. § 111(a)(1), (b).

While the transcript of his sentencing hearing suggests that Wright wanted to

appeal and that his trial attorney was told to file a notice of appeal on his behalf,




                                           2
no such notice was ever filed. On August 25, 2017, more than three years after he

was sentenced, Wright filed a notice of appeal pro se with this Court.

      Wright argues that he undisputedly had unconstitutionally ineffective

assistance of counsel below due to his trial attorney’s failure to file a timely notice

of appeal on his behalf. See Garza v. Idaho, 139 S. Ct. 738, 747 (2019) (“So long as

a defendant can show that ‘counsel’s constitutionally deficient performance

deprive[d him] of an appeal that he otherwise would have taken,’ courts are to

‘presum[e] prejudice with no further showing from the defendant of the merits of

his underlying claims.’” (quoting Roe v. Flores‐Ortega, 528 U.S. 470, 484 (2000)

(alterations in original))).   For that reason, Wright contends that under this

Court’s precedent in United States v. Fuller, 332 F.3d 60, 65 (2d Cir. 2003), he is

entitled to a remand to the district court for entry of a new judgment from which

he can take a timely direct appeal.

      We disagree with Wright that Fuller can be applied here, given that it is

unclear, at best, whether a petition for habeas corpus relief under 28 U.S.C. § 2255

filed on August 25, 2017, the date of his notice of appeal, would have been timely.

As such, a Fuller remand, with no further analysis of Wright’s actions during the

three years between his sentencing and attempt to appeal, would circumvent and,




                                          3
indeed, upend Congress’s provisions permitting timely but limiting untimely

post‐conviction petitions pursuant to the Anti‐Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). See Pub. L. No. 104‐132, 110 Stat. 1214 (Apr. 24,

1996).       Nevertheless, we remand Wright’s case to the district court with

instructions to convert his untimely notice of appeal into a habeas petition and for

consideration of whether his petition is timely under § 2255(f)(4), either with or

without application of equitable tolling.

                                   BACKGROUND

                              I.   Factual Background1

         In May 2010, while Wright was being held at Buffalo Federal Detention

Center, he ran away from several “contract detention officers” on a “shakedown

team,” i.e., a team conducting random cell searches.         Def.‐App. Br. 5.    After

observing him run away, two officers—Christopher Cichocki and Matthew

Irons—decided they should search Wright’s cell. They observed him leaving his

cell “holding a thermal shirt in his left hand.”    Id. When they approached, he

punched the two officers before being wrestled to the ground.            Both officers



         1The factual background presented here is derived from facts found at Wright’s
jury trial, which was held over several days in November 2011. See No. 10‐cr‐6166 (CJS)
(MWP) (W.D.N.Y.), ECF Nos. 62–64.


                                            4
suffered injuries and were treated by medical staff either at the detention center

(Irons) or off its grounds (Cichocki).

                               II.   Procedural History

       A criminal complaint was filed against Wright in the United States District

Court for the Western District of New York on June 7, 2010.           Wright pled not

guilty, and following a two‐day trial in November 2011 the jury convicted him on

both counts of assault on a law enforcement officer, in violation of 18 U.S.C.

§ 111(a), (b).

       On May 2, 2014, Wright appeared before the district court for sentencing.

Although his lawyers had attempted to review his Pre‐Sentence Report (“PSR”)

with him, he declined to read it and explicitly affirmed that denial to the district

court, saying he was “not worried about the sentence.”2 Appendix (“App’x”) 40.

After reviewing the PSR and the sentencing factors under 18 U.S.C. § 3553, the

district court sentenced Wright to two concurrent terms of 240 months’


       2 The same day he was sentenced in this case, the same district court judge
sentenced Wright in a separate case to, inter alia, four concurrent life sentences. See
Judgment, No. 10‐cr‐6128 (CJS) (JWF) (W.D.N.Y. May 9, 2014), ECF No. 515. Although
the attorney who represented Wright in the district court in the instant case, Richard M.
Roberts, was also counsel of record on that separate case for some years, he subsequently
withdrew, and another attorney was responsible for filing the notice of appeal in that
case. That other lawyer timely did so, and that other case is currently pending on appeal
in this Court under Docket No. 14‐1027.


                                           5
imprisonment—a sentence within the range the district court calculated under the

United States Sentencing Guidelines. Wright was also ordered to pay mandatory

special assessments totaling $200, and fines totaling $1,000.

      After pronouncing Wright’s sentence, the district court asked Wright if he

had any questions. Wright said that he would not be able to afford his lawyer,

Richard M. Roberts (“Roberts”), at the next stage of the proceedings, but that he

was “going to appeal this case.”       App’x 51.       The district court explained the

process of attorney withdrawal and how Wright could get new counsel from this

Court on appeal. The docket entry detailing the sentencing proceeding reflects

that the district court granted Roberts’s “oral application to withdraw as

defendant’s counsel for the appeal.” No. 10‐cr‐6166 (W.D.N.Y. May 2, 2014), ECF

No. 72.    Nevertheless, the district court asked that Roberts, “before [he is]

relieved, file a Notice of Appeal” in Wright’s case. App’x 52.

                                   *      *        *

      But Roberts did not file a notice of appeal on Wright’s behalf. No notice of

appeal was filed until several years later, on August 25, 2017, when Wright himself

filed a notice of appeal with this Court pro se. On July 20, 2018, the government

moved to dismiss Wright’s appeal as untimely. On September 4, 2018, a panel of




                                          6
this Court referred the government’s motion to the merits panel and specifically

directed the parties to address (1) “whether a petition pursuant to 28 U.S.C. § 2255

raising the ineffective assistance claim would be time‐barred under § 2255(f)(1),

(4), because the notice of appeal was filed three years after the conviction,” and (2)

“if so, whether a Fuller remand is available.” Motion Order at 1, No. 17‐2715 (2d

Cir. Sept. 4, 2018), ECF No. 98. The case was submitted to this panel on May 21,

2019.

                                     DISCUSSION

                                             I

        In United States v. Fuller, 332 F.3d 60 (2d Cir. 2003), abrogated on other grounds

by United States v. Frias, 521 F.3d 229, 232 (2d Cir. 2008), a panel of this Court

considered the appeal of Leyton Wint, whose notice of appeal was filed several

months after the time to do so expired under Federal Rule of Appellate Procedure

(“FRAP”) 4(b). See 332 F.3d at 64. All parties agreed that Wint’s counsel failed

to file his requested notice of appeal in a timely manner, and that such failure

“constitutes ineffective assistance of counsel, entitling the defendant to relief.”

Id. We noted that if Wint had instead filed a motion under 28 U.S.C. § 2255, such

a finding of ineffective assistance would warrant a remand either for resentencing




                                            7
or for entry of a new judgment. Id. (citing Garcia v. United States, 278 F.3d 134,

138 (2d Cir. 2002) (giving the district court the choice to either resentence the

defendant or enter a new judgment imposing the same sentence)).

      As the government conceded that Wint would be able to challenge the

current judgment successfully under § 2255, it asked this Court to “remand for

entry of a new judgment to replace the existing judgment.” Id. Thus, what was

left for the Court to decide was whether it should (1) nevertheless dismiss Wint’s

appeal outright, thereby forcing him either to file a § 2255 motion that both parties

agreed would clearly be successful, or (2) take limited action despite the untimely

notice of appeal to order some version of relief—entry of a new judgment or an

order to resentence. See id. at 64–65.3

      The Fuller Court noted three “unfortunate consequences” that might arise if

it were simply to dismiss Wint’s appeal and order no further action. Id. at 65.

First, the Court was concerned with “the waste of time and judicial resources to




      3   This question was complicated by the fact that at the time Fuller was decided,
this Court considered the Federal Rules of Appellate Procedure to be jurisdictional. See
Fuller, 332 F.3d at 64. As noted above, however, this has been abrogated by Frias, which
explained that while FRAP 4(b) is not jurisdictional, “[w]hen the government properly
objects to the untimeliness of a defendantʹs criminal appeal, Rule 4(b) is mandatory and
inflexible.” Frias, 521 F.3d at 234. Here, the government properly objected to the
untimeliness of Wright’s appeal by moving to dismiss.


                                           8
process the section 2255 motion” Wint would have to file, given that all parties

agreed it would succeed and required no further factual development prior to its

adjudication. Id. Second, the Court was concerned that by forcing Wint to file

a § 2255 motion, he would “use up” his initial petition and be forced to comply

with the more stringent standard for successive petitions during any subsequent

habeas proceedings. Id.4 Lastly, the Court was concerned that “dismissal of the

appeal would leave the current judgment in place, at least until the granting of a

motion under section 2255, thereby risking expiration of a substantial part and

possibly all of the one‐year limitations period of 28 U.S.C. § 2255.” Id.

         Given these concerns, and the fact that “the judgment is vulnerable to being

set aside in any event,” the Court declined to dismiss Wint’s case and require him

to file a § 2255 motion. Id. at 66. Instead, the Court dismissed Wint’s appeal as

untimely, but remanded the case to the district court with instructions to vacate

the judgment and enter a new one from which a timely appeal could be taken. Id.

at 65.




         This is no longer a concern, as habeas petitions to reinstate direct appeal rights
         4

do not render “a later collateral proceeding a duplicative attack on the conviction.”
Carranza v. United States, 794 F.3d 237, 241 (2d Cir. 2015) (internal quotation marks
omitted).


                                             9
      In the years since its creation, this so‐called “Fuller remand” has been used

only sparingly. See, e.g., United States v. Medley, 300 F. App’x 14, 16 (2d Cir. 2008)

(remanding for entry of a new judgment following defendant’s attorney’s

concession that he did not file a requested notice of appeal in a timely fashion).

Furthermore, it has been cabined to cases presenting the same distinctive sets of

facts that motivated Fuller itself—cases where the defendant undisputedly asked

his lawyer to file a notice of appeal on his behalf, and where the attorney

nonetheless did not do so. See United States v. Moreno‐Rivera, 472 F.3d 49, 52 (2d

Cir. 2006) (declining to allow a Fuller remand where the Court could not “ascertain

on this record whether Moreno–Rivera actually gave timely instructions to his trial

counsel to file an appeal”); see also Campusano v. United States, 442 F.3d 770, 775 (2d

Cir. 2006) (finding per se ineffective assistance only “where counsel does not file a

requested notice of appeal” (emphasis added)).        Where the record of what a

defendant did or did not ask his lawyer to do is less clear‐cut, and thus further

factual development is needed to ascertain whether a claim of ineffective

assistance exists, a § 2255 motion is still necessary. See Massaro v. United States,

538 U.S. 500, 504 (2003) (“[I]n most cases a motion brought under § 2255 is

preferable to direct appeal for deciding claims of ineffective assistance.”). As the




                                          10
Fuller remedy thus applies to such a narrow set of circumstances, we have

expressed concerns that “defendants may seek the Fuller remedy at a time when a

habeas petition would be timely, only to have a panel hold after expiration of the

AEDPA limitations period” that such a remedy does not apply on the facts before

it. United States v. Lajud‐Pena, 655 F. App’x 35, 36 (2d Cir. 2016).

        Here, Wright appears to satisfy the factual predicate for a Fuller remand in

that the record demonstrates his attorney did not file a requested notice of appeal

in a timely manner, which (at least absent additional facts not in the record here)

constitutes per se constitutionally ineffective assistance. See Garza, 139 S. Ct. at

747. But Wright’s case presents a new twist: he is not a defendant who chose to

file an untimely notice of appeal instead of a habeas petition, but who is

nonetheless still clearly within the time permitted under § 2255. Instead, given

the passage of time since his sentencing, Wright may be unable to file any timely

§ 2255 petition. As a result, we conclude that Fuller does not apply to Wright’s

case.

                                          II

        As discussed above, Wright filed an untimely notice of appeal years after

his attorney failed to file a timely notice, thereby invoking our precedent in Fuller.




                                         11
If, however, he had instead filed a habeas petition, he would have had to contend

with AEDPA’s time limitations encouraging prompt petitions for post‐conviction

relief. Having just explored the general contours of the Fuller remand, we next

lay out the basic tenets of AEDPA’s system.         We then consider how the two

interact to make the Fuller remedy necessarily inapplicable to Wright’s case.

                                           A

      AEDPA imposes a one‐year statute of limitations on motions to set aside

sentences imposed, inter alia, “in violation of the Constitution or laws of the United

States.” 28 U.S.C. § 2255(a), (f). This one year runs from the last of a number of

“triggering events,” Rivas v. Fischer, 687 F.3d 514, 533 (2d Cir. 2012).        These

include, as relevant to Wright’s case, “(1) the date on which the judgment of

conviction [became] final,” and “(4) the date on which the facts supporting the

claim or claims presented could have been discovered through the exercise of due

diligence.” 28 U.S.C. § 2255(f)(1), (4).

      When no notice of appeal (or other post‐conviction motion) is filed in a

defendant’s case, the Federal Rules of Appellate Procedure provide that the

conviction becomes final fourteen days after judgment is entered.           See FRAP

4(b)(1)(A)(i). Pursuant to 28 U.S.C. § 2255(f)(1), the statute of limitations to file a




                                           12
habeas petition runs one year from that day. In Wright’s case, this date came and

went, and no petition was filed.

      In cases in which an attorney fails to file a requested notice of appeal on

behalf of her client, however, we have allowed that “the date on which the facts

supporting [the defendant’s claim of ineffective assistance] could have been

discovered,” see 28 U.S.C. § 2255(f)(4), may very well be later than the day the

judgment became final.    In Wims v. United States, 225 F.3d 186 (2d Cir. 2000),

defendant John C. Wims pled guilty, but told his attorney that “a reduction in his

sentence was worth pursuing” and presumed his attorney would file an appeal.

Id. at 188 (internal quotation marks and brackets omitted). Nevertheless, Wims’s

attorney failed to file a notice of appeal, and thus his conviction became final

within several weeks, pursuant to FRAP 4(b). Approximately 16 months later,

Wims requested the docket sheet in his case, at which point he discovered that no

appeal had been filed.   See id.   Wims then filed a pro se motion under § 2255

claiming ineffective assistance, which was received by the district court about 17

months after Wims’s conviction became final.

      This Court determined that Wims’s petition was timely “if his claim for

habeas relief accrued no earlier than one year prior to the date of filing” in the




                                        13
district court. Id. at 189. Accordingly, it was error for the district court to deem

§ 2255(f)(4) a method for “extending” the statute of limitations, rather than as a

“reset[]” of the statute of limitations, “moving it from the time when the conviction

became final, to the later date on which the particular claim accrued.” Id. at 189–

90 (internal quotation marks and brackets omitted).        Given that the statute of

limitations would “reset” and allow for an additional year following Wims’s

discovery of his attorney’s ineffective assistance, we concluded that “[t]he proper

task in a case such as this one is to determine when a duly diligent person in

petitioner’s circumstances would have discovered that no appeal had been filed.”

Id. at 190.

       We noted in Wims that the petitioner was clearly not required to discover

that no appeal had been filed “the very day on which [his] conviction became final

absent appeal,” and that determining the precise date on which a defendant should

have discovered his attorney’s failure to appeal is therefore “a fact‐specific issue.”

Id.   Accordingly, we remanded for the district court to consider “when, in

exercising due diligence, Wims would have discovered his counselʹs failure to

appeal,” giving consideration to, inter alia, “the details of Wims’ post‐sentence

conversation with his lawyer and . . . the conditions of his confinement in the




                                         14
period after” his conviction became final.       Id. at 190–91.    Nevertheless, we

determined in the first instance that a five‐month delay in learning of an attorney’s

failure to appeal “is not so clearly unreasonable that it plainly appears from the

face of [an] appellant’s petition and supporting papers that he is barred from

habeas relief.” Id. at 191.

      In addition, the deadlines created by 28 U.S.C. § 2255(f) are not

jurisdictional—“AEDPA’s statute of limitations . . . ‘does not set forth an inflexible

rule requiring dismissal whenever its clock has run.’”        Rivas, 687 F.3d at 537

(quoting Holland v. Florida, 560 U.S. 631, 645 (2010) (internal quotation marks

omitted)).   This is because although “AEDPA seeks to eliminate delays in the

federal habeas review process,” it does not do so at the expense of “basic habeas

corpus principles,” or prior law that a “petition’s timeliness [has] always [been]

determined under equitable principles.” Holland, 560 U.S. at 648. As a result,

even in the wake of AEDPA, a petitioner is entitled to equitable tolling of the one‐

year statute of limitations if he shows: “(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way and

prevented timely filing.” Id. at 649 (internal quotation marks omitted).




                                         15
      To warrant equitable tolling, “the circumstances of a case must be

‘extraordinary.’”     Id.   at   652.   When    determining    what    constitutes

“extraordinary” circumstances, we have observed that “the proper inquiry is not

how unusual the circumstance alleged to warrant tolling is among the universe of

prisoners, but rather how severe an obstacle it is for the prisoner endeavoring to

comply with AEDPA’s limitations period.” Diaz v. Kelly, 515 F.3d 149, 154 (2d

Cir. 2008). For example, “a garden variety claim of excusable neglect, such as a

simple miscalculation that leads a lawyer to miss a filing deadline, does not

warrant equitable tolling.” Holland, 560 U.S. at 651–52 (internal quotation marks

omitted).   This is because “a lawyer is the agent of his client, [so] the client

generally must bear the risk of attorney error.” Rivas, 687 F.3d at 538 (internal

quotation marks omitted). But when “attorney negligence . . . [is] so egregious as

to amount to an effective abandonment of the attorney‐client relationship,”

extraordinary circumstances may be found. Id.; see also Holland, 560 U.S. at 652

(finding extraordinary circumstances when attorney “failed to file [defendant’s]

federal petition on time despite [defendant’s] many letters that repeatedly

emphasized the importance of his doing so” and “failed to communicate with his

client over a period of years, despite various pleas from [defendant] that [the




                                        16
lawyer] respond to his letters”); Maples v. Thomas, 565 U.S. 266, 281 (2012)

(concluding, in context of state procedural default, that extraordinary

circumstances existed as “[a] markedly different situation is presented . . . when

an attorney abandons his client without notice, and thereby occasions the

default”); Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003)

(distinguishing “extraordinary” actions—e.g., failure to file a petition, do any

research, or meet with a client—from “simple mistakes” that do not warrant

equitable tolling).

      Even when extraordinary circumstances exist, however, a petitioner must

demonstrate diligence to qualify for equitable tolling. “In the attorney

incompetence context, . . . the reasonable diligence inquiry focuses on the purpose

for which the petitioner retained the lawyer, his ability to evaluate the lawyer’s

performance, his financial and logistical ability to consult other lawyers or obtain

new representation, and his ability to comprehend legal materials and file the

petition on his own.” Doe v. Menefee, 391 F.3d 147, 175 (2d Cir. 2004). The only

diligence required for the application of equitable tolling is “reasonable

diligence”—we do not require “maximum feasible diligence.” Holland, 560 U.S.

at 653 (internal quotation marks omitted).     Even so, “we expect [even] pro se




                                        17
petitioners to know when the limitations period expires and to understand the

need to file a [habeas] motion within that limitations period.”     Doe, 391 F.3d at

177.

                                         B

       “Congress enacted AEDPA to advance the finality of criminal convictions.”

Mayle v. Felix, 545 U.S. 644, 662 (2005). It would be “anomalous,” then, id., for us

to set aside the entirety of the above‐described system merely because Wright

chose to file an untimely notice of appeal—thereby invoking our precedent in

Fuller—rather than a habeas petition under § 2255.

       The reasoning of Fuller, which focused primarily on judicial efficiency,

buttresses this conclusion.     See Fuller, 332 F.3d at 65.       Fuller’s desire to

expediently resolve a clearly meritorious ineffective assistance claim in a situation

“where the judgment is vulnerable to being set aside in any event,” id. at 66, does

not as easily extend to a situation where the availability of a timely § 2255 motion

is less clear. By granting a Fuller remand in this case, we would be circumventing

numerous requirements otherwise applied to post‐conviction claims under

AEDPA.     Wright would not be required to establish (1) when he reasonably

should have discovered his attorney’s failure to file a notice of appeal or (2) the




                                         18
existence of either of the requirements for equitable tolling. Instead, all he would

have to show is an unfiled—but clearly requested—notice of appeal.

      Moreover, if we were to expand Fuller to such a case, Wright would

theoretically be entitled to make this showing not only three years after sentencing

(as he did in this case), but also at any point during his twenty‐year sentence. We

cannot countenance a rule that forces the government to defend against a

defendant’s attack to his conviction years—or even decades—after that conviction

becomes final. Memories fade, and the existence of evidence to prove or disprove

a defendant’s claims becomes less and less available. Lastly, not only would this

judicially created loophole run counter to AEDPA’s goal of “advanc[ing] the

finality of criminal convictions” by encouraging prompt petitions; it also would

inexplicably exempt only a certain class of defendants from the statute’s otherwise

“tight time line.” See Mayle, 545 U.S. at 662; see also Doe, 391 F.3d at 177.

      As a result, we do not see how the Fuller remedy can be divorced from the

system of limitations for habeas motions. When a defendant—as the defendant

in Fuller himself did—files an untimely notice of appeal but is still well within the

limits set out under § 2255, we affirm our reasoning that a remand to set aside a

judgment “vulnerable to being set aside in any event,” Fuller, 332 F.3d at 66, is an




                                          19
efficient and reasonable use of judicial resources.        If, however, the untimely

notice of appeal would not clearly have been timely had it been filed instead as a

habeas petition at the district court under § 2255, we will not so easily allow a

defendant to circumvent AEDPA’s carefully calibrated system.                   In such

situations, a Fuller remand is not warranted. Instead, we must consider—to the

extent appropriate, given our position as an appellate court—how that notice of

appeal would have fared had it been filed instead under § 2255.

        Here, Wright filed his untimely notice of appeal with this Court on August

25, 2017. Had he instead filed a habeas petition, it clearly would not have been

timely under § 2255(f)(1): given that his conviction became final fourteen days

after it was issued, the statute of limitations under § 2255(f)(1) expired on May 22,

2015.

        We express no opinion on whether Wright could have filed a timely motion

under § 2255(f)(4), however, or whether he qualified for equitable tolling. Had

Wright filed a § 2255 motion on August 25, 2017 in the district court instead of a

notice of appeal, for it to be timely, either (1) the fact that his attorney did not file

a notice of appeal must not have been discoverable using due diligence prior to

August 25, 2016; or (2) Wright must qualify for equitable tolling for some period




                                           20
of time between the day by which he should have discovered the facts of his

ineffective assistance claim and the latest possible beginning of the § 2255(f)(4)

limitations period, i.e., August 25, 2016.     These are “fact‐specific issue[s].”

Wims, 225 F.3d at 190. As such, they are better resolved by the district court after

further development of the record.

      In a previous summary order, we dismissed a defendant’s appeal with

instructions to convert his untimely notice of appeal into a § 2255 motion. See

Lajud‐Pena, 655 F. App’x at 37. There, because the defendant had pursued a Fuller

remand to which it was ultimately determined he was not entitled, he missed the

deadline to file a petition for habeas relief.      Upon noting the defendant’s

timeliness problem, we asked the parties whether we could simply “remand for

the district court to convert the notice of appeal.” Id. at 36. The government

noted that under Adams v. United States, 155 F.3d 582 (2d Cir. 1998), a motion could

not be recharacterized as a habeas petition under § 2255 without a defendant’s

consent.   See Lajud‐Pena, 655 F. App’x at 37.        When Adams was decided,

however, it was an open question whether such recharacterization could cause a

defendant prejudice by causing all subsequent § 2255 motions to be deemed

successive. A subsequent opinion by this Court characterized a § 2255 motion




                                        21
that regains a defendant’s direct appeal right as not exhausting that defendant’s

initial § 2255 motion. See Urinyi v. United States, 607 F.3d 318, 321 (2d Cir. 2010).

Nevertheless, “in an abundance of caution,” we provided in Lajud‐Pena that the

conversion could happen only after providing the defendant an opportunity to

withdraw his motion instead. Lajud‐Pena, 655 F. App’x at 37.

      While we will afford Wright the same opportunity to withdraw here, we

observe that the changes in the law noted by Lajud‐Pena suggest that withdrawal

would be unwise.        Although we express no opinion on the ultimate outcome

following conversion, Wright may be able to demonstrate to the district court that

a habeas petition filed at the time he filed his notice of appeal would be timely

under § 2255(f)(4) or would qualify for equitable tolling so as to become timely.

If he is successful, not only would Wright be entitled to a new judgment from

which to take his direct appeal, but he also would not have exhausted any

opportunity that he would otherwise have had to file an initial habeas petition

raising other issues.

      If he were to withdraw, however, a new § 2255 motion filed subsequent to

this opinion is extremely unlikely to fare so well, given the passage of almost five

years since his sentencing in the district court. As a result, on remand we instruct




                                         22
the district court—after it solicits consent from Wright—to convert Wright’s

August 25, 2017 notice of appeal into a petition for habeas relief and to assess

whether his petition would be timely under 28 U.S.C. § 2255(f)(4), with or without

application of equitable tolling—an issue on which we express no view.

                                 CONCLUSION

      For the foregoing reasons, we DISMISS Wright’s appeal, and REMAND to

the district court for proceedings consistent with this opinion.




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