     08-1575-pr
     Contino v. United States of America


 1                                  UNITED STATES COURT OF APPEALS
 2
 3                                         FOR THE SECOND CIRCUIT
 4
 5                                              August Term, 2007
 6
 7   (Submitted: July 15, 2008                                                  Decided: July 24, 2008)
 8                                            Docket No. 08-1575-pr
 9
10
11                        _________________________________________________
12
13   JOHN CONTINO,
14
15                                     Petitioner-Appellant,
16
17                    — v. —
18
19   UNITED STATES OF AMERICA,
20
21                                     Respondent-Appellee.
22
23                        _________________________________________________
24
25
26   Before:
27
28                       CALABRESI, STRAUB, and B.D. PARKER, Circuit Judges:
29
30                        _________________________________________________

31   John Contino moves for a certificate of appealability (“COA”) in his appeal from the entry of an

32   order of the United States District Court for the Southern District of New York (Buchwald, J.)

33   denying his 28 U.S.C. § 2255 motion to vacate his guilty plea and sentence. The Government moves

34   to dismiss the appeal for lack of jurisdiction, arguing that his notice of appeal was untimely filed.

35   Because we find that we have jurisdiction over Contino’s appeal, we deny the Government’s motion

36   to dismiss. However, we also deny Contino’s motion for a COA and dismiss the appeal because
 1   Contino has not made a substantial showing of the denial of a constitutional right as required by 28

 2   U.S.C. § 2253(c).

 3                                                 JEREMY GUTMAN,
 4                                                 New York, NY,
 5                                                 for Petitioner-Appellant
 6
 7                                                 JASON P.W. HALPERIN,
 8                                                 United States Attorney’s Office for the Southern
 9                                                 District of New York,
10                                                 New York, NY
11                                                 for Respondent-Appellee.
12
13   PER CURIAM:
14
15                  In August 2007, John Contino, through counsel, filed a 28 U.S.C. § 2255 motion to

16   vacate his guilty plea and sentence, alleging that he had received ineffective assistance of counsel

17   and that his plea was not voluntary and intelligent because his trial counsel failed to give him

18   sufficient advice and information. The district court denied the § 2255 motion, and this appeal

19   followed. In addition to seeking a COA on those two claims, Contino argues that the district court

20   erred by not holding an evidentiary hearing on the issue of whether his trial counsel explained the

21   elements of the RICO offense to him. We assume the parties’ familiarity with the underlying facts

22   and procedural history of the case.

23   THE MOTION TO DISMISS

24                  In a civil case in which the United States or an officer or agency thereof is a party,

25   Federal Rule of Appellate Procedure 4(a)(1) and 28 U.S.C. § 2107 require the appellant to file a

26   notice of appeal within 60 days of the entry of the judgment or order being appealed. In Bowles v.

27   Russell, the United States Supreme Court made “clear that the timely filing of a notice of appeal in

28   a civil case is a jurisdictional requirement.” 127 S. Ct. 2360, 2366 (2007).


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 1                  The order denying Contino’s § 2255 motion was entered on December 28, 2007 and,

 2   thus, Contino had until Tuesday, February 26, 2008 to timely file a notice of appeal. See Fed. R.

 3   App. P. 4(a)(1)(B). The parties do not dispute that Contino attempted to file a timely notice on

 4   January 24, 2008, which was rejected because it was filed electronically.* See S.D.N.Y. Third

 5   Amended Instructions for Filing an Electronic Case or Appeal ¶ 6 (directing parties in electronically

 6   filed cases to “[f]ile the appeal in the traditional manner, on paper”). Contino did not file a notice

 7   of appeal on paper until April 1, 2008, well after the 60-day deadline had passed.

 8                  This Court has not yet addressed whether a notice of appeal should be considered

 9   timely if a party attempted to file it within the required time-frame, but it was rejected by the clerk

10   for failure to comply with a local rule. Local rules have the force of law, as long as they do not

11   conflict with a rule prescribed by the Supreme Court, Congress, or the Constitution. See United

12   States v. Yonkers Bd. of Educ., 747 F.2d 111, 112 (2d Cir. 1984). In Somlyo v. J. Lu-Rob

13   Enterprises, Inc., this Court held that compliance with local rules was a prerequisite for timely filing

14   a notice of removal, but found that district courts had the inherent authority to decide when a party’s

15   failure to comply with a local rule could be excused. 932 F.2d 1043, 1048 (2d Cir. 1991) (party

16   attempted to file notice of removal within statutory 30-day time period, but notice rejected by the

17   clerk because it lacked the cover sheet and backing required by local rule). The Court later extended

18   this holding and found that district courts could excuse a party’s failure to “comply with rules

19   enforced by its local electronic case filing system.” Phoenix Global Ventures, LLC v. Phoenix Hotel



            *
           The docket entry for January 24, 2008 states: “FILING ERROR - ELECTRONIC
     FILING FOR NON-ECF DOCUMENT - NOTICE of Appeal. Document filed by John Contino.
     (Gutman, Jeremy) Modified on 4/1/2008 (jar). (Entered: 01/24/2008).”

                                                        3
 1   Assocs., Ltd., 422 F.3d 72, 76 (2d Cir. 2005) (affirming district court’s finding that motion was

 2   timely filed after first two attempts to electronically file motion within the required time period were

 3   rejected by electronic case filing system).

 4                   The Seventh Circuit, in a criminal case, addressed facts similar to those in the instant

 5   matter. See United States v. Harvey, 516 F.3d 553 (7th Cir. 2008). In Harvey, the appellant

 6   electronically filed a timely notice of appeal; however, because local rules required that the notice

 7   of appeal be filed on paper, the filing was rejected by the clerk’s office and the appellant did not file

 8   the paper notice of appeal until two months later, well after the deadline had passed. See id. at 555-

 9   56. The Seventh Circuit found that, despite the clerk’s rejection of the timely notice, it had

10   jurisdiction to hear the appeal because Fed. R. Civ. P. 5(e) “ensures that any document presented to

11   the clerk in violation of a local rule of form can nonetheless be filed for purposes of satisfying a

12   filing deadline.”** Id. at 556. The court determined that “the difference between a hard copy and

13   an electronic submission is a mere error of form” and held that the appellant “timely filed his notice

14   of appeal when he submitted it electronically to the clerk’s office.” Id.

15                   The reasoning of the Seventh Circuit is persuasive. Current Rule 5(d)(4), former Rule

16   5(e), states, “The clerk must not refuse to file a paper solely because it is not in the form prescribed

17   by these rules or by a local rule or practice.” Moreover, Rule 83(a)(2) prohibits the enforcement of

18   a local rule regulating the form of a filing if its enforcement would cause a party to lose a right and

19   the party’s non-compliance with the rule was not willful. Here, there is no indication that Contino’s



             **
                The 2007 amendments to the rules restyled Rule 5, and former section 5(e) is now
     encompassed within 5(d). The commentary states that the changes were intended to be only
     stylistic. See Fed. R. Civ. P. 5 and 2007 commentary.

                                                        4
 1   failure to submit the notice of appeal on paper was willful and, if the local rule is enforced, Contino

 2   would lose the right to appeal.

 3                   Although portions of Somlyo appear to be contrary, it was decided in May 1991,

 4   before the relevant language was added to Rules 5 and 83. Rule 83(a)(2) was added in the 1995

 5   amendments and the accompanying commentary stated that it was intended “to protect against loss

 6   of rights in the enforcement of local rules relating to matters of form.” Likewise, the relevant portion

 7   of Rule 5 was added in the 1991 amendments, effective December 1, 1991. The accompanying

 8   commentary noted that some local rules directed the clerk to refuse to accept papers that did not meet

 9   “certain requirements of form imposed by local rules or practice” and stated that “[t]his is not a

10   suitable role for the office of the clerk, and the practice exposes litigants to the hazards of time bars;

11   for these reasons, such rules are proscribed by this revision.” Thus, the Federal Rules of Civil

12   Procedure indicate that Contino should not lose his right to appeal because of an error in the form

13   of the notice of appeal. This conclusion is consistent with the treatment of notices of appeal which

14   the appellant failed to sign, another type of defect in form. In those situations, the failure to sign may

15   be remedied after the time period for filing the notice has expired. See Becker v. Montgomery, 532

16   U.S. 757, 768 (2001). Accordingly, Contino’s notice of appeal is considered to have been timely

17   filed on January 24, 2008, and the motion to dismiss the appeal for lack of jurisdiction is denied.

18   THE MOTION FOR A CERTIFICATE OF APPEALABILITY

19                   This Court may issue a certificate of appealability “only if the applicant has made a

20   substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Miller-

21   El v. Cockrell, 537 U.S. 322, 327 (2003). In appeals under § 2255, this Court reviews factual



                                                         5
 1   findings for clear error and questions of law de novo. See Zhang v. Unites States, 506 F.3d 162, 166

 2   (2d Cir. 2007) (citing Harris v. United States, 367 F.3d 74, 79 (2d Cir. 2004)).

 3                   A claim of ineffective assistance of counsel is analyzed under the two-part test set

 4   forth in Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). See United States v. Hernandez,

 5   242 F.3d 110, 112 (2d Cir. 2001). Under Strickland, a petitioner must demonstrate that: (1)

 6   counsel’s representation fell below an objective standard of reasonableness; and (2) there is a

 7   reasonable probability that, but for counsel’s errors, the result of the proceeding would have been

 8   different. 466 U.S. at 688, 694. Here, Contino has not made a substantial showing that he received

 9   ineffective assistance of counsel or that his plea was not voluntary or intelligent. Contino was on

10   notice about the nature of the charges against him through the detailed indictment, the written (and

11   signed) plea agreement, and the terms of his allocution at the plea proceeding. Moreover, the

12   Government’s attorney made clear at the plea proceeding that the RICO offense entailed a “pattern”

13   of racketeering activity, and that the extortion acts involved the procurement of consent to take

14   another’s property through the use of fear. Furthermore, the district court did not abuse its discretion

15   in declining to hold an evidentiary hearing on the issue of whether Contino’s trial counsel explained

16   the RICO offense elements to him because Contino did not demonstrate a colorable claim of

17   ineffective assistance. See Chang v. United States, 250 F.3d 79, 82, 84-85 (2d Cir. 2001) (finding

18   no abuse of discretion where district court denied, without a hearing, § 2255 motion alleging

19   ineffective assistance of counsel, following submissions of petitioner and his counsel that

20   demonstrated petitioner was not entitled to relief). Accordingly, the COA motion is denied and the

21   appeal is dismissed.




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