Difalco v. USA
Filing
7
ORDER granting 1 --motion to vacate/set aside/correct sentence (2255); vacating judgment; referring the criminal matter to the magistrate judge for appointment of counsel; directing the Clerk to ENTER JUDGMENT for DiFalco and to CLOSE the case. Signed by Judge Steven D. Merryday on 12/1/2014. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA,
v.
CASE NO. 8:13-cr-72-T-23MAP
8:14-cv-2334-T-23MAP
MICHAEL FRANCIS DiFALCO
/
ORDER
DiFalco’s motion to vacate under 28 U.S.C. § 2255 (Doc. 1) challenges the
validity of his conviction for conspiring to possess with intent to distribute fifty grams
or more of methamphetamine, for which offense he is imprisoned for 240 months.
Among other claims,1 DiFalco alleges that his trial counsel failed to follow his
directive to appeal. The United States admits that the motion is timely, that the
motion warrants relief, and that DiFalco is entitled to a delayed appeal. (Response
at 4, Doc. 6)
1
As McIver v. United States, 307 F.3d 1327, 1331, n.2 (11th Cir. 2002), suggests, whether
DiFalco is entitled to a delayed appeal warrants resolution before DiFalco’s other claims are
addressed. Permitting a delayed appeal preserves DiFalco’s other claims for possible review in a
future Section 2255 motion to vacate based on the new judgment.
DiFalco alleges that his trial counsel was ineffective for failing to appeal. As
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains, Strickland v.
Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
Supreme Court set forth a two-part test for analyzing ineffective
assistance of counsel claims. According to Strickland, first, the
defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.
DiFalco’s claim that his defense counsel rendered ineffective assistance by
failing to appeal is governed by Strickland. Roe v. Flores-Ortega, 528 U.S. 470, 476-77
(2000); Thompson v. United States, 481 F.3d 1297 (2007).
Flores-Ortega identifies three situations involving counsel’s alleged failure to
protect the client’s appellate rights, specifically (1) counsel fails to file an appeal even
though the defendant unquestionably expresses his desire to appeal,2 (2) the
defendant faults counsel for not appealing even though the defendant stated that he
2
Roe v. Flores-Ortega, 528 U.S. at 477 (“[A] defendant who instructs counsel to initiate an appeal
reasonably relies upon counsel to file the necessary notice. Counsel's failure to do so cannot be considered a
strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention
to the defendant's wishes.”).
-2-
did not want an appeal,3 and (3) the defendant’s desire to appeal is not clearly
expressed.4 DiFalco’s motion to vacate presents the first situation identified in FloresOrtega, which is that counsel failed to file an appeal even though DiFalco
unquestionably expressed his desire to appeal. DiFalco alleges that after sentencing
but within the deadline for an appeal he sent a certified letter to his trial counsel,
which letter directs counsel to appeal. Following service of the Section 2255 motion
the United States contacted DiFalco’s trial counsel, who verifies that, after checking
his file, he realized “that he had, in fact, received such a letter from DiFalco” and
that he never appealed. Consequently, based on both DiFalco’s allegation and
defense counsel’s admission that DiFalco’s request to appeal was not honored,
defense counsel’s failure to file a notice of appeal was deficient performance.
A petitioner shows a denial of the effective assistance of counsel if he proves
that counsel’s deficient performance caused him to lose his right to an appeal.
“[W]hen counsel’s constitutionally deficient performance deprives a defendant of an
appeal that he otherwise would have taken, the defendant has made out a successful
ineffective assistance of counsel claim entitling him to an appeal.” Roe v. FloresOrtega, 528 U.S. at 484. Defense counsel’s admission that DiFalco unquestionably
3
Roe v. Flores-Ortega, 528 U.S. at 477. (“At the other end of the spectrum, a defendant who explicitly
tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his
counsel performed deficiently.”).
4
Roe v. Flores-Ortega, 528 U.S. at 477 (“Is counsel deficient for not filing a notice of appeal when the
defendant has not clearly conveyed his wishes one way or the other?” ).
-3-
expressed his desire to appeal shows that DiFalco was deprived “of an appeal that he
otherwise would have taken.”
RE-SENTENCING
United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000), explains that the
proper procedure is to vacate the sentence originally imposed and re-impose the same
sentence, from which DiFalco may appeal.
When the district courts of this circuit conclude that an
out-of-time appeal in a criminal case is warranted as the remedy
in a § 2255 proceeding, they should effect that remedy in the
following way: (1) the criminal judgment from which the
out-of-time appeal is to be permitted should be vacated; (2) the
same sentence should then be reimposed; (3) upon reimposition
of that sentence, the defendant should be advised of all the
rights associated with an appeal from any criminal sentence;
and (4) the defendant should also be advised that the time for
filing a notice of appeal from that re-imposed sentence is ten
days . . . .
A sentencing hearing is not necessary and DiFalco’s presence is not required. United
States v. Parrish, 427 F.3d 1345, 1348 (11th Cir. 2002) (“[T]he district court did not err
by re-sentencing Parrish without holding a hearing. Under Phillips, the district court
was required to re-sentence Parrish to the same sentence originally imposed, and was
not required to hold a re-sentencing hearing.”).
Accordingly, the motion to vacate under 28 U.S.C. § 2255 (Doc. 1) is
GRANTED. The judgment entered in the criminal case (Doc. 68 in 8:13-cr-72) is
VACATED. The matter is referred to the United States Magistrate Judge for the
-4-
appointment of counsel. After counsel files a notice of appearance, the district court
will re-impose the sentence and enter a new judgment in the criminal case in accord
with United States v. Phillips, 225 F.3d 1198 (11th Cir. 2000), and United States v.
Parrish, 427 F.3d 1345, 1348 (11th Cir. 2005). DiFalco’s new counsel must timely
file a notice of appeal from the new judgment in the criminal case. The clerk must
enter a judgment for DiFalco for the civil action and close the civil case.
ORDERED in Tampa, Florida, on December 1, 2014.
-5-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?