Hays v. United States of America Respondent shall have 30 days from date Petitioner files amended petition to respond.
Filing
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ORDER denying 672 Motion for Leave to File Out of Time Appeal as to Richard Bud Hays (12) in case CR09-4045-DEO. However, the Clerk of Court shall docket no. 672 as a pro se 28 USC Section 2255 Petition. The Clerk shall appoint Mr. Hayes Section 22 55 counsel. Appointed counsel shall have 30 days to file an amended pleading. Respondent shall have 30 days from Petitioner's pleading to file a responsive pleading. Finally, former counsel, Patrick Parry, will assist the Government as set out above. Signed by Senior Judge Donald E OBrien on 5/7/14. (nef mailed to petitioner; CJA Panel Administrator notified) (djs) Modified on 5/7/2014 (djs).
14cv4036-DEO
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
No.
vs.
09-CR-4045-DEO
ORDER ON PRO SE FILING
RICHARD BUD HAYS,
Defendant.
____________________
Before the Court is Defendant’s pro se “Motion for Leave
to File Notice of Appeal Out of Time and to Appoint Counsel.”
Docket No. 672. The Defendant, Mr. Hays, is currently serving
a 120 month sentence for charges related to the manufacture of
methamphetamine.
Mr. Hays plead guilty pursuant to a plea
agreement, and this Court sentenced him on January 2, 2011.
See Docket No’s. 465 and 619.
Mr. Hays did not appeal his
sentence.
I.
DIRECT APPEAL
In his current Motion, Mr. Hays states that he believed
his attorney was pursuing an appeal of his case.
Mr. Hays
states that when he found out his attorney was not pursuing an
appeal, he filed the present pro se Motion.
In his pro se
Motion, he asks the Court to allow him to appeal the judgment
against him.
The 8th Circuit Court of appeals has stated that under
Federal Rule of Appellate Procedure 4(b), the timely filing of
a notice of appeal is mandatory.
F.2d 1146, 1147 (8th Cir. 1988).
United States v. Anna, 843
The 8th Circuit Court of
Appeals previously stated that in situations where a notice of
appeal was not timely taken, the Court lacked jurisdiction to
consider it.
However, the 8th Circuit recently stated that:
[u]nlike
Federal
Rule
of
Appellate
Procedure 4(a), Rule 4(b) is not grounded
in statute and is set forth only in a
court-prescribed
rule
of
appellate
procedure.
Court-prescribed rules of
practice and procedure, as opposed to
statutory time limits, “do not create or
withdraw federal jurisdiction.”
Kontrick
v. Ryan, 540 U.S. 443, 453 (2004)
(quotation and citation omitted).
Rule
4(b) is thus a claim-processing rule, like
the rules at issue in Kontrick and Eberhart
v. United States, 546 U.S. 12 (2005) (per
curiam).
In accordance with all other
circuits that have considered the issue, we
hold that Rule 4(b) is not jurisdictional.
United States v. Watson, 623 F.3d 542, 545-46 (8th Cir. 2010).
Accordingly, the Court has jurisdiction to consider Mr. Hays’
late notice of appeal.
The procedure for filing a notice of appeal in a criminal
case is governed by Federal Rule of Appellate Procedure 4(b),
which states in pertinent part:
2
(1) Time for Filing a Notice of Appeal
(A) In a criminal case, a defendant's
notice of appeal must be filed in the
district court within 10 days after the
later of:
(i) the entry of either the judgment or the
order being appealed; or
(ii) the filing of the government's notice
of appeal.
(B) When the government is entitled to
appeal, its notice of appeal must be filed
in the district court within 30 days after
the later of:
(i) the entry of the judgment or order
being appealed; or
(ii) the filing of a notice of appeal by
any defendant...
(4) Motion for Extension of Time. Upon a
finding of excusable neglect or good cause,
the district court may-before or after the
time has expired, with or without motion
and notice-extend the time to file a notice
of appeal for a period not to exceed 30
days from the expiration of the time
otherwise prescribed by this Rule 4(b).
Fed. R. App. P. 4(b).
The 8th Circuit has interpreted Rule
4(b) to mean that a district court may consider motions by a
defendant for an extension of time to file a notice of appeal
“no later than forty days after judgment.”
United States v.
Cheek, 761 F.2d 461, 462 (8th Cir. 1985).
After the “forty
day period expires, there is nothing that either a district
court or a court of appeals can do to extend the time for
filing a notice of appeal.”
Id.
3
This Court received Mr. Hays’ notice of appeal on April
16, 2014, more than three years after judgment in the above
captioned case became final.
Accordingly, the Court cannot
grant his pro se Motion or allow him to directly appeal this
Court’s judgment.
II.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his pro se Motion, Mr. Hays argues that his counsel
was ineffective for failing to file a timely appeal of his
conviction.
Ineffective assistance of counsel is a matter
generally reserved for a habeas action pursuant to 28 U.S.C.
§ 2255. Accordingly, the Court will consider Mr. Hays’ filing
as a pro se 28 U.S.C. § 2255 petition.
IT IS HEREBY ORDERED THAT the Clerk of Court shall file
Mr. Hays’ pro se pleading, Docket No. 672, as a pro se 28
U.S.C. § 2255 Petition with its own civil case caption.
III.
TIME LIMIT
According to 28 U.S.C. § 2255(f),
A 1-year period of limitation shall apply
to a motion under this section.
The
limitation period shall run from the latest
of (1) the date on which the judgment of
conviction becomes final; (2) the date on
which the impediment to making a motion
created by governmental action in violation
4
of the Constitution or laws of the United
States is removed, if the movant was
prevented from making a motion by such
governmental action; (3) the date on which
the right asserted was initially recognized
by the Supreme Court, if that right has
been newly recognized by the Supreme Court
and made retroactively applicable to cases
on collateral review; or (4) the date on
which the facts supporting the claim or
claims presented could have been discovered
through the exercise of due diligence.
As stated above, this Court entered Judgment against Mr. Hays
on January 5, 2011.
Docket No. 619.
Mr. Hays filed the
present pro se Motion on April 16, 2014, well outside the one
year limitation period.
However, the one-year statute of
limitation may be equitably tolled if the movant shows (1)
that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented
timely filing.
Muhammad v. United States, 735 F.3d 812, 815
(8th Cir. 2013) (internal citations omitted).
In his pro se
Motion, Mr. Hays alleges that extraordinary circumstances, his
counsel’s ineffective assistance, caused him to miss the
relevant filing deadlines.
Accordingly, the Court will allow
Mr. Hays’ Petition to proceed past this initial stage.
1
1
This is not the Court’s final ruling on the statute of
(continued...)
5
IV.
APPOINTMENT OF COUNSEL.
Based upon a review of the submitted pleading, the Court
has determined that appointed counsel is appropriate in order
that the Plaintiff be adequately represented in this matter.
A court has discretion to appoint counsel "at any stage of the
proceeding if the interest of justice so requires." 18 U.S.C.
§3006A(a)(2)(B); Fed.R.Gov. §2255 Proc. 8(c).
Appointment of
counsel is mandated only if the court grants an evidentiary
hearing, Rule 8(c), or if the court permits discovery and
deems
counsel
"necessary
for
effective
utilization
of
discovery procedures." Rule 6(a). Based upon a review of the
submitted pleading, the Court has determined that appointed
counsel
is
appropriate
in
order
that
the
Plaintiff
be
adequately represented in this matter.
UPON THE FOREGOING, IT IS HEREBY ORDERED that the Clerk
of Court shall appoint counsel to represent pro se Petitioner
in the 28 U.S.C. §2255 matter.
1
(...continued)
limitations issue. Rather, the Court is saying that it will
appoint Mr. Hays counsel and allow counsel to address this
issue on the merits.
6
IT IS FURTHER HEREBY ORDERED that Petitioner’s newly
appointed counsel shall have thirty (30) days from the date of
his/her appointment to file an amended petition, setting out
the proper defendant and supplementing Mr. Hays’ allegations
in the appropriate manner.
IT IS FURTHER ORDERED that the Respondent shall have
thirty (30) days from the date Petitioner’s counsel files a
supplemental pleading and brief, if any, within which to file
a responsive pleading and brief.
V.
FORMER COUNSEL
Finally, the Court notes that Mr. Hays raises a claim of
ineffective assistance of counsel.
A claim of ineffective
assistance of counsel waives the attorney-client privilege as
to communications with the attorney necessary to prove or
disprove the claim.
United States v. Pinson, 584 F.3d 972,
978 (10th Cir. 2009) (citing Tasby v. United States, 504 F.2d
332, 336 (8th Cir. 1974)("When a client calls into public
question the competence of his attorney, the privilege is
waived.")).
Therefore,
counsel
whose
representation
is
challenged shall cooperate with the United States and provide
information,
documents,
and
an
7
affidavit,
if
necessary,
responsive to any ineffective assistance of counsel claim in
Mr. Hays’s § 2255 motion.
Mr. Hays was represented in
criminal case number 09-CR-4045-DEO by attorney Patrick Parry.
Mr. Parry shall receive a copy of this Order, be added to the
docket in this matter by the Clerk of Court, and will be
required to participate in any hearing scheduled on the merits
of the Petition.
VI.
CONCLUSIONS
For the reasons set out above, Mr. Hays’ pro se Motion to
File an Out of Time Appeal, Docket No. 672, is DENIED.
However, the Clerk of Court shall file Docket No. 672 as a pro
se 28 U.S.C. § 2255 Petition.
Additionally, the Clerk of
Court shall appoint Mr. Hays § 2255 counsel.
Appointed
counsel
pleading.
will
have
30
days
to
file
an
amended
Respondent shall have 30 days from Petitioner’s pleading to
file a responsive pleading.
Finally, former counsel, Patrick
Parry, will assist the Government as set out above.
IT IS SO ORDERED this 7th day of May, 2014.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
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