Wassouf v . United States CV-02-343-M 10/31/03 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
George Wassouf, Petitioner
v. Civil N o . 02-343-M Opinion N o . 2003 DNH 189 United States of America, Respondent
O R D E R
By order dated June 2 0 , 2003 (document n o . 1 5 ) , the court
held that petitioner seemed to present one claim for relief in
his petition for relief under 28 U.S.C. § 2255 that might prove
meritorious: that he timely directed his trial defense counsel to
file an appeal in his underlying criminal case, but counsel
failed to do s o . See, Roe v . Flores-Ortega, 528 U.S. 470 (2000).
By order dated August 4 , 2003, the court appointed counsel
(Michael Shklar, Esq.) to represent petitioner in connection with
that issue. A hearing was held on September 2 4 , 2003.
Petitioner was present. Background
At the hearing, petitioner and the government addressed the
remaining issue, presenting witnesses and exhibits, including
relevant correspondence between petitioner and counsel.
Petitioner asserts, and testified, that he told his defense
counsel to file an appeal of his criminal conviction and
sentence, but counsel failed to do s o . Trial defense counsel,
Assistant Federal Defender Jonathan R. Saxe, filed an affidavit
contradicting petitioner’s claim. He also gave testimony that
contradicted petitioner’s assertions. Specifically, Saxe
testified that petitioner never told him that he wished to
appeal. To the contrary, Saxe said that petitioner plainly and
unambiguously expressed his decision not to appeal, both before
and after sentencing, and during two telephone conversations
before the time expired during which an appeal of right could
have been taken.
The remaining issue to be resolved in this habeas petition
is straightforward. Petitioner’s complaint amounts to an
assertion that he was denied effective assistance of counsel -
that Attorney Saxe acted in a professionally unreasonable manner
2 in failing to file a notice of appeal in his underlying criminal
case after having been instructed to do s o . See Rodriquez v .
United States, 395 U.S. 327 (1969). The Supreme Court recently
addressed the subject of ineffective assistance of counsel as it
relates to the failure to file a notice of appeal in a criminal
case, holding:
If counsel has consulted with the defendant [about pursuing an appeal], the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal.
Flores-Ortega, 528 U.S. at 478. The Supreme Court further
explained that by “consult” it meant that defense counsel advised
defendant about the advantages and disadvantages of taking an
appeal, “and [made a ] reasonable effort to discover the
defendant’s wishes.” Id.
I have no doubt that Attorney Saxe consulted with petitioner
about the possibility of an appeal. And, I have no doubt that
petitioner communicated, on different occasions within the ten
day appeal period, that he wished to forego an appeal. And, I am
3 satisfied that petitioner understood that the likelihood of
success on appeal was minimal.
After all, in the underlying criminal case, petitioner
entered a knowing, intelligent, and voluntary plea of guilty,
pursuant to a negotiated plea agreement of the so-called
“binding” type. The plea agreement called for a specific
sentence; if a more severe sentence was imposed, petitioner was
entitled to withdraw his plea. Petitioner was in fact sentenced
within the limits of his bargain with the prosecution, so his
plea remained unassailable. Needless to say, a criminal
conviction based upon a provident plea of guilty, made pursuant
to a plea agreement for a specific sentencing range, which
results in the sentence bargained for, all tends to reduce the
scope of potentially appealable issues and indicates that “the
defendant seeks an end to the judicial proceedings.” Id. at 480.
Ordinarily, then, relief would be summarily denied. But a
number of factors in this case militate in favor of a closer
look. First, petitioner had ten (10) days in which to file an
appeal of his conviction and sentence. Fed. R. App. P.
4 4(b)(1)(a). Needless to say, accurate time computation under the
federal rules often requires both time and a fair amount of
patience. Nevertheless, for reasons that will become clear, it
is necessary, before proceeding further, to accurately determine
just when the ten day appeal window closed in this case.
Having carefully reviewed the record and the applicable
procedural rules, it is evident that the appeal period expired on
Monday, December 1 0 , 2001, but not for the reasons assumed by
counsel and the court during the hearing. That conclusion is
based on the following analysis. Petitioner was sentenced on
Monday, November 2 6 , 2001. Judgment was entered on Tuesday,
November 2 7 , 2001, but an amended judgment was subsequently
entered on Thursday, November 2 9 , 2001. To determine when the
10-day appeal window closed, applying the current iteration of
Fed. R. App. P. 26 (a) ( 2 ) , one must count ten days from November
2 9 , excluding the starting day (November 29th) and excluding
intermediate Saturdays, Sundays, and legal holidays, because the
period of time being computed is “less than 11 days.” Fed. R.
App. P. 26(a)(2). Under the current rule, then, the ten day
appeal period would have expired on Thursday, December 1 3 , 2001.
5 However, Rule 26(a)(2) was amended in 2002 to resolve an
inconsistency between the Federal Rules of Criminal Procedure and
Federal Rules of Appellate Procedure, which computed time
differently.
In 2001, at the time of petitioner’s conviction and before
the amendments became effective, Fed. R. App. P. 26(a)(2)
excluded intermediate Saturdays, Sundays, and legal holidays from
the time computation only when the period being computed was
“less than 7 days.” Under that version of the rule, then, the
ten day appeal period, counted from entry of the amended
judgment, would have expired on December 9, 2001. But, December
9, 2001, was a Sunday, and Fed. R. App. P. 26(a)(3) instructs
that if the last day is a Sunday, it is also excluded. S o , under
the then-applicable rules, the period in which petitioner could
have filed an appeal as of right expired the next day - on
Monday, December 1 0 , 2001.
Attorney Saxe consulted with petitioner about an appeal both
before and at sentencing on November 2 6 , 2001, advising
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Wassouf v . United States CV-02-343-M 10/31/03 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
George Wassouf, Petitioner
v. Civil N o . 02-343-M Opinion N o . 2003 DNH 189 United States of America, Respondent
O R D E R
By order dated June 2 0 , 2003 (document n o . 1 5 ) , the court
held that petitioner seemed to present one claim for relief in
his petition for relief under 28 U.S.C. § 2255 that might prove
meritorious: that he timely directed his trial defense counsel to
file an appeal in his underlying criminal case, but counsel
failed to do s o . See, Roe v . Flores-Ortega, 528 U.S. 470 (2000).
By order dated August 4 , 2003, the court appointed counsel
(Michael Shklar, Esq.) to represent petitioner in connection with
that issue. A hearing was held on September 2 4 , 2003.
Petitioner was present. Background
At the hearing, petitioner and the government addressed the
remaining issue, presenting witnesses and exhibits, including
relevant correspondence between petitioner and counsel.
Petitioner asserts, and testified, that he told his defense
counsel to file an appeal of his criminal conviction and
sentence, but counsel failed to do s o . Trial defense counsel,
Assistant Federal Defender Jonathan R. Saxe, filed an affidavit
contradicting petitioner’s claim. He also gave testimony that
contradicted petitioner’s assertions. Specifically, Saxe
testified that petitioner never told him that he wished to
appeal. To the contrary, Saxe said that petitioner plainly and
unambiguously expressed his decision not to appeal, both before
and after sentencing, and during two telephone conversations
before the time expired during which an appeal of right could
have been taken.
The remaining issue to be resolved in this habeas petition
is straightforward. Petitioner’s complaint amounts to an
assertion that he was denied effective assistance of counsel -
that Attorney Saxe acted in a professionally unreasonable manner
2 in failing to file a notice of appeal in his underlying criminal
case after having been instructed to do s o . See Rodriquez v .
United States, 395 U.S. 327 (1969). The Supreme Court recently
addressed the subject of ineffective assistance of counsel as it
relates to the failure to file a notice of appeal in a criminal
case, holding:
If counsel has consulted with the defendant [about pursuing an appeal], the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal.
Flores-Ortega, 528 U.S. at 478. The Supreme Court further
explained that by “consult” it meant that defense counsel advised
defendant about the advantages and disadvantages of taking an
appeal, “and [made a ] reasonable effort to discover the
defendant’s wishes.” Id.
I have no doubt that Attorney Saxe consulted with petitioner
about the possibility of an appeal. And, I have no doubt that
petitioner communicated, on different occasions within the ten
day appeal period, that he wished to forego an appeal. And, I am
3 satisfied that petitioner understood that the likelihood of
success on appeal was minimal.
After all, in the underlying criminal case, petitioner
entered a knowing, intelligent, and voluntary plea of guilty,
pursuant to a negotiated plea agreement of the so-called
“binding” type. The plea agreement called for a specific
sentence; if a more severe sentence was imposed, petitioner was
entitled to withdraw his plea. Petitioner was in fact sentenced
within the limits of his bargain with the prosecution, so his
plea remained unassailable. Needless to say, a criminal
conviction based upon a provident plea of guilty, made pursuant
to a plea agreement for a specific sentencing range, which
results in the sentence bargained for, all tends to reduce the
scope of potentially appealable issues and indicates that “the
defendant seeks an end to the judicial proceedings.” Id. at 480.
Ordinarily, then, relief would be summarily denied. But a
number of factors in this case militate in favor of a closer
look. First, petitioner had ten (10) days in which to file an
appeal of his conviction and sentence. Fed. R. App. P.
4 4(b)(1)(a). Needless to say, accurate time computation under the
federal rules often requires both time and a fair amount of
patience. Nevertheless, for reasons that will become clear, it
is necessary, before proceeding further, to accurately determine
just when the ten day appeal window closed in this case.
Having carefully reviewed the record and the applicable
procedural rules, it is evident that the appeal period expired on
Monday, December 1 0 , 2001, but not for the reasons assumed by
counsel and the court during the hearing. That conclusion is
based on the following analysis. Petitioner was sentenced on
Monday, November 2 6 , 2001. Judgment was entered on Tuesday,
November 2 7 , 2001, but an amended judgment was subsequently
entered on Thursday, November 2 9 , 2001. To determine when the
10-day appeal window closed, applying the current iteration of
Fed. R. App. P. 26 (a) ( 2 ) , one must count ten days from November
2 9 , excluding the starting day (November 29th) and excluding
intermediate Saturdays, Sundays, and legal holidays, because the
period of time being computed is “less than 11 days.” Fed. R.
App. P. 26(a)(2). Under the current rule, then, the ten day
appeal period would have expired on Thursday, December 1 3 , 2001.
5 However, Rule 26(a)(2) was amended in 2002 to resolve an
inconsistency between the Federal Rules of Criminal Procedure and
Federal Rules of Appellate Procedure, which computed time
differently.
In 2001, at the time of petitioner’s conviction and before
the amendments became effective, Fed. R. App. P. 26(a)(2)
excluded intermediate Saturdays, Sundays, and legal holidays from
the time computation only when the period being computed was
“less than 7 days.” Under that version of the rule, then, the
ten day appeal period, counted from entry of the amended
judgment, would have expired on December 9, 2001. But, December
9, 2001, was a Sunday, and Fed. R. App. P. 26(a)(3) instructs
that if the last day is a Sunday, it is also excluded. S o , under
the then-applicable rules, the period in which petitioner could
have filed an appeal as of right expired the next day - on
Monday, December 1 0 , 2001.
Attorney Saxe consulted with petitioner about an appeal both
before and at sentencing on November 2 6 , 2001, advising
petitioner of his right to file an appeal, and generally advising
6 him of counsel’s opinion that there were no meritorious appellate
issues. That i s , Saxe told petitioner that, in his opinion,
there was nothing to appeal. Counsel also made a reasonable
effort at that time to discover petitioner’s wishes regarding an
appeal and, quite understandably, petitioner expressed his lack
of interest in taking an appeal, as well as his agreement that an
appeal should not be pursued, no doubt recognizing that he had
received the benefit of his plea bargain and there were no
meritorious issues.
Consistent with that circumstance, during the ten days
following sentencing, counsel received a letter from petitioner
that did not mention any interest in an appeal, and he had one or
two telephone conversations with petitioner during which
petitioner did not bring up the matter of an appeal. On
Thursday, December 6, 2001, petitioner again called counsel, but
this time he did mention a possible appeal, asking, in substance,
“What about this appeal thing?” Again, counsel discussed the
matter of an appeal with petitioner, and again, after discussing
the issue, petitioner conveyed his lack of interest in filing an
appeal; he did not instruct counsel to file an appeal.
7 On Monday, December 1 0 , 2001 – the last day on which an
appeal could be filed as a matter of right – Saxe arrived at his
office and found a letter from petitioner dated December 2 , 2001,
but postmarked December 7 , 2001 (i.e., it was mailed after the
December 6 telephone conversation). In that letter petitioner
wrote: “You also should appeal the sentence so file for it.”
Rather than simply file a notice of appeal (which he readily
conceded could be done in a matter of minutes, with little
effort), Saxe called petitioner at the Merrimack County House of
Correction to inquire about his contradictory written statement
regarding filing an appeal.
Saxe advised petitioner that if he indeed wanted Saxe “to
try to file an appeal at that point,” he would do s o . See
Affidavit of Jonathan Saxe, Esq., at para. 9 (document n o . 20)
(emphasis supplied). Saxe conceded that, at that time, he
thought the appeal period had already expired on December 6, or
thereabouts, probably calculating ten calendar days from the
sentencing date (November 26) rather than from the date of the
amended judgment (November 2 9 ) . During that conversation Saxe
did not explicitly tell petitioner that the appeal period had
8 expired, but it seems more likely than not that Saxe’s
misunderstanding colored his discussion with and the advice given
to petitioner. It bears noting that Saxe also did not expressly
tell petitioner that the appeal period was still open, and that
if he wanted to appeal, an appeal was easily had. After
discussing the matter again, Saxe says he was left with the clear
impression that petitioner had plainly and unambiguously
expressed his understanding that there were no meritorious issues
and had unambiguously communicated his decision not to pursue an
appeal.
Later that afternoon, Saxe received yet another letter from
petitioner, this one dated and postmarked December 8 (i.e., it
was written and mailed before that morning’s telephone
conversation but after the December 6 conversation). In that
letter petitioner wrote “I told you to file an appeal twice
before the (10) days were u p . But you said there was no base
[sic] for i t . But I told you to do it anyway” (emphasis added).
Saxe did not make further inquiry of petitioner after receiving
that letter, since the letter had obviously been written and
mailed before the telephone conversation they had just had that
9 morning, in which Saxe understood petitioner to have again
decided not to pursue an appeal. The December 8 letter suggests,
of course, that petitioner also thought the ten day appeal period
had already expired when he wrote the letter, a misunderstanding
likely rooted in Saxe’s own misunderstanding, and in the December
6 discussion.
About eleven days later, Saxe received yet another letter
from petitioner, this one dated December 18th and postmarked
December 20th. In that letter petitioner reiterated his earlier
statement: “I also told you to file for an appeal twice before
the (10) days were u p . But you said there was no base [sic] for
it. But I told you to do it anyway.” Saxe, obviously upset,
responded by letter dated December 2 1 , 2001, in which he reviewed
the history of the interaction between them (from Saxe’s
perspective) relative to an appeal, and asserted that:
Every discussion that we had concerning the issue of an appeal, whether it was on the phone or in person, ended with a clear and unambiguous position on your part that you did not want me to file an appeal. You were simply not interested in appealing your case. Your most recent letters are shamefully dishonest and manipulative. . . . You elected not to file an appeal and conveyed that decision to m e . The appeal period is passed. My representation of you has concluded.
10 Discussion
The record in this case lends credence to Saxe’s assessment
of petitioner’s penchant for dishonesty and manipulation.
Petitioner’s credibility is weak, to say the least. Whether his
obvious difficulties in that regard are malevolent or
pathological is hard to say. But, there can be no doubt that
petitioner’s prolific and self-contradictory pleadings and
letters reveal him to be among the most difficult defendants to
represent. Without doubt, he continually confronted Saxe with
mixed signals and blatantly contradictory statements regarding
the handling of his case.
Nevertheless, it does appear that petitioner directed
counsel, in writing, to appeal (“You also should appeal the
sentence so file for it.”) at a time when an appeal of right was
still available to him (i.e., the letter received by Saxe on
December 1 0 , 2001). Saxe could have and should have filed a
notice of appeal on December 1 0 . I do not fault Saxe for calling
petitioner to discuss his apparent change of heart, and do not
doubt the sincerity of Saxe’s impression that petitioner, during
that conversation, yet again seemed to change his mind. But, it
11 is not altogether clear that petitioner did change his mind (he
says he did n o t ) . And, it seems that he did not change his mind
after full and adequate consultation – that i s , after being
accurately advised of the situation regarding the appeal period,
which was still open although Saxe thought it had expired. If
petitioner did acquiesce in abandoning his right to file an
appeal, it is more probable than not that he abandoned that
right, on December 1 0 , based in substantial part on his
misunderstanding (a misunderstanding shared by Saxe) that the
appeal period had already expired anyway, when it had not. If
Saxe had said to petitioner, on December 1 0 , “The appeal period
is still open, if you wish I will immediately note an appeal”
(rather than that he would “try” to file an appeal “at that
point” – i.e., the period having expired), then petitioner likely
would have directed him to “file for it,” thereby obtaining
appellate review.
The difficulty here arises from the fact that the appeal
period was not correctly calculated by counsel in the first
instance. Nor was it adequately explained to petitioner, during
either the December 6 or December 10 consultations, that an
12 appeal of right could be had merely by asking. Had counsel been
aware that the time in which to appeal was still open on December
1 0 , when he got petitioner’s letter directing him to appeal,
counsel would have likely followed his usual practice o f , as he
said, filing a notice of appeal whenever a client wishes to
appeal, without regard to the absence of meritorious issues.
And, had counsel correctly calculated the expiration of the
appeal period, his discussion with petitioner on December 10
would likely have (and should have) included specific advice to
the effect that the appeal period was still open.
I am persuaded that had accurate advice been given regarding
the open appeal period, this petitioner would have elected to
pursue an appeal, given his often repeated view that issues of
one sort or another exist warranting review. That is not to say
that his taking an appeal would have constituted a rational or
reasonable decision, but only that this petitioner would have
chosen to appeal (the court is not unaware that petitioner faces
deportation, and may think an appeal will delay that outcome).
That petitioner has a well-documented habit of vacillation and
self-contradiction makes it less, not more, likely that his
13 statements regarding abandoning his right to appeal were ever
firm. He was, of course, entitled to change his mind as often as
he liked, up until the appeal period expired. He directed an
appeal by letter received by counsel on December 1 0 , and although
he may have changed his mind yet again after discussing the
matter with counsel, that change of mind was likely the product,
in substantial part, of a basic misunderstanding (shared by
counsel) as to whether an appeal of right was still available,
and was not based upon correct advice that should have been given
regarding the open appeal period. Petitioner’s subsequent
complaint also supports the conclusion that he thought the appeal
period had already expired before December 1 0 .
Accordingly, I find that petitioner is entitled to limited
relief, in the nature of affording him ten (10) days from the
date of this order to file a notice of appeal in his underlying
criminal case, if he chooses to do s o . Attorney Shklar shall
consult with petitioner about his right to appeal and, if so
directed, shall file a notice of appeal. A copy of this order
shall be faxed to Attorney Shklar.
14 SO ORDERED.
Steven J. McAuliffe United States District Judge
October 3 1 , 2003
cc: Michael C . Shklar, Esq. (Faxed to 863-3970) Peter E . Papps, Esq. Jonathan R. Saxe, Esq.