United States v. Durham

460 F. App'x 74

• Court: Court of Appeals for the Second Circuit
• Decided: March 5, 2012
• Docket: 10-3299
• Status: Unpublished

Opinion

SUMMARY ORDER

Spencer Durham appeals the denial of his motion, filed pursuant to 28 U.S.C. § 2255, seeking to vacate his sentence for obstruction of mail. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

“A defendant claiming ineffective assistance must (1) demonstrate that his counsel’s performance ‘fell below an objective standard of reasonableness’ in light of ‘prevailing professional norms,’ ... and (2) ‘affirmatively prove prejudice’ arising from counsel’s allegedly deficient representation.” United States v. Cohen, 427 F.3d 164, 167 (2d Cir.2005) (quoting Strickland v. Washington, 466 U.S. 668, 688, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “[A] lawyer who disregards a defendant’s specific instruction to file a notice of appeal acts in a manner that is professionally unreasonable.... ” Campusano v. United States, 442 F.3d 770, 773 (2d Cir.2006) (citing Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)). Durham’s counsel did not file a notice of appeal despite Durham’s timely request.

However, after the deadline to file such a notice passed, but at a time when his counsel could still have filed a motion for an extension, Fed. R.App. P. 4(b)(4), Durham withdrew his request. Accordingly, Durham is not entitled to relief. Cf. Campusano, 442 F.3d at 773 (“[Wjhere counsel’s error leads to ‘the forfeiture of a proceeding itself,’ prejudice will be presumed.” (quoting Flores-Ortega, 528 U.S. at 483-84, 120 S.Ct. 1029)).

Finding no merit in Durham’s remaining arguments, we hereby AFFIRM the judgment of the district court.