VICK v. UNITED STATES OF AMERICA

Filing 11

OPINION. Signed by Judge William J. Martini on 10/8/15. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(Civ. No. 14-4240) (WJM)
(Crim. No. 13-0040) (WJM)

CHARLES VICK,
Petitioner,

Hon. William J. Martini
v.
OPINION
UNITED STATES OF AMERICA,
Respondent.

This matter comes before the Court on pro se Petitioner Charles Vick’s
motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Vick alleges that his
attorneys were ineffective for failing to file notices of appeal of his sentence after
he directed them to do so. He requests that the Court vacate his sentence or,
alternatively, grant him permission to file an out-of-time appeal. The Government
requests that this Court grant Vick leave to file a notice of appeal within 30 days
of the entry of this Court’s order, and has indicated that it will not move to dismiss
Vick’s appeal as untimely. There was no oral argument. For the reasons stated
below, the petition is GRANTED to the extent that Petitioner is granted 30 days
within the entry of this Court’s Order to file a notice of appeal nunc pro tunc.
I.

BACKGROUND

In January 2013, Vick pleaded guilty before this Court to an Information
that charged him with transportation of minors with intent to engage in criminal
sexual activity. Under the terms of the plea agreement, Vick agreed to waive his
right to file any appeal, collateral attack, or other writ or motion, including but not
limited to any motion under § 2255, if he received a sentence within or below the
Guideline range corresponding to a Guideline Offense Level of 29. Vick was
sentenced within that range. Specifically, this Court determined that Vick’s
Guideline Level was 29, with a criminal history category II, which carries a
sentencing range of 97-121 months’ imprisonment. Based on the mandatory
minimum associated with the offense, Vick’s advisory guidelines range was 120121 months. The Court granted the Government’s 5K1.1 motion and sentenced
Vick to 108 months’ imprisonment, to be followed by 84 months’ supervised
release.
1

Judgment was entered on June 27, 2013. On August 6, 2013, Vick’s
counsel moved for an extension of time to file a notice of appeal. This Court
granted an extension of time through September 26, 2013, but a notice of appeal
was never filed. In November 2013, Vick filed a pro se letter seeking a “status
update” of his pending appeal.
Vick has now filed the instant amended pro se § 2255 motion. Vick alleges
that his attorneys were ineffective for failing to file notices of appeal of his
sentence after he directed them to do so. He requests that the Court vacate his
sentence or, alternatively, grant him permission to file an out-of-time appeal.
The Government responds by requesting that this Court grant an order
dismissing the § 2255 motion as moot and allowing Vick to file a notice of appeal
within 30 days of the entry of this Court’s order. The Government further
indicates that it will not move to dismiss Vick’s appeal as untimely.
II.

DISCUSSION

Under 28 U.S.C. § 2255, a federal court may vacate, set aside or correct a
sentence “upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction
to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. §
2255(a).
A defendant’s Sixth Amendment right to counsel is presumptively violated
if a defendant directs his attorney to file an appeal but his attorney fails to do so.
Solis v. United States, 252 F.3d 289, 293-94 (3d Cir. 2001). Prejudice is assumed
from counsel’s failure to file a notice of appeal when requested by his client. Id.
The Petitioner need not demonstrate that the issues he would seek to raise on
appeal are meritorious, nor that they would have succeeded if an appeal had been
pursued. Id. at 295.
Here, Vick alleges that his attorneys were constitutionally ineffective for
failing to file notices of appeal of his sentence after he directed them to do so. “A
new opportunity to appeal is the remedy for petitioner’s alleged ineffective
assistance of counsel.” Id. at 294. Ordinarily, an evidentiary hearing will be held
on Petitioner’s claim, and if the Court is concludes that Petitioner’s counsel was
ineffective for failing to file a notice of appeal, then Petitioner will “be given the
opportunity nunc pro tunc to brief his direct appeal in full.” Id. at 295; see also
Hankerson v. United States, No. CIV.A. 05-5351, 2006 WL 1084086, at *2
(D.N.J. Apr. 24, 2006).
2

In this case, the Government has not opposed Vick’s application to file an
out-of-time notice of appeal and, in fact, requests that Vick be granted 30 days to
file his notice of appeal. The Government further indicates that it will not oppose
Vick’s appeal on timeliness ground.1 Under these circumstances, the Court finds
that no evidentiary hearing is necessary on Vick’s ineffective assistance claim.
However, contrary to the Government’s assertions, the § 2255 petition is
not moot. Instead, pursuant to the procedure outlined in Solis, Vick is entitled to
the entry of an Order granting his § 2255 petition to the extent that he is provided
30 days from the entry of the accompanying order to file a notice of appeal nunc
pro tunc. See e.g., Adderly v. United States, No. CIV.A.05-4260, 2006 WL
383522, at *1-2 (D.N.J. Feb. 17, 2006) (granting, without an evidentiary hearing, a
§ 2255 petition to the extent that Petitioner was allowed to file a notice of appeal
nunc pro tunc). In the event the Petitioner presents another § 2255 petition, it
shall be deemed his first filed petition for purposes of the successive habeas
requirements outlined in § 2244, a provision of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). See Solis, 252 F.3d at 295; Tyson v.
Beard, 345 Fed. App’x 744, 749 (3d Cir. 2009) (describing AEDPA’s successive
statutory requirements).
Finally, the waiver contained in Vick’s plea agreement does not bar him
from appealing or collaterally attacking his sentence on the basis of ineffective
assistance of counsel. But Vick is cautioned that, if he files a direct appeal that is
barred by his plea agreement, the Court of Appeals may determine that he has
breached the agreement, and remand for resentencing. See United States v. Erwin,
765 F.3d 219, 232 (3d Cir. 2014) (vacating sentence and remanding for
resentencing because, by challenging his sentence, defendant had breached the
plea agreement).
III. CONCLUSION
For the above reasons, Vick’s petition to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 is GRANTED to the extent that he seeks time to
file a notice of appeal. Vick is advised that he has 30 days from the entry of the
accompanying order to file a notice of appeal nunc pro tunc. An appropriate order
follows.
1
An untimely notice of appeal is not a jurisdictional bar in a criminal appeal where the
Government declines to raise timeliness of the appeal as a defense or bar to the appeal. See, e.g., United
States v. Spoonhour, 567 Fed. App’x 114 (3d Cir. 2014) (considering merits of untimely appeal in the
absence of objection from the Government on timeliness grounds); Virgin Islands v. Martinez, 620 F.3d
321, 329 n.5 (3d Cir. 2010) (“Because Rule 4(b) is not grounded in statute, therefore, we are not deprived
of appellate jurisdiction if a party fails to invoke the rule properly upon an untimely notice of appeal.”).

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/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: October 8, 2015

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