Petition for Writ of Certiorari — Joshua Kelly, Petitioner v. United States

Supreme Court briefMay 18, 2018

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RECORD NO.

3411 Zfflje

6upreme Court of TO Uniteb e*

--tate,5

JOSHUA KELLY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Murray Kamionski, Esq.*

LAW OFFICE OF

MURRAY KAMIONSKI

6821 Dogwood Road

Baltimore, MD 21244

Direct: 410-504-1852

Email: mkamionski@yahoo.com

*Counsel of Record for Petitioner

LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia 23219 (804) 644-0477

A Division of Lantagne Duplicating Services

QUESTIONS PRESENTED

One of the most important constitutional challenges to the adequacy of

criminal process is a claim that a defendant was denied the Sixth Amendment right

to effective assistance of trial counsel. This is because the right to counsel is

necessary to protect the fundamental right to a fair trial.

This case raises very important constitutional as well as procedural questions

that include when a court may extend an appeal period questions on which the

circuits have been divided.

These questions are a by-product of the differing deadlines in Rule 4 of the

Federal Rules of Appellate Procedure. Under FRAP 4(b)(1)(A)(i), a criminal

defendant wishing to appeal a conviction must file a notice of appeal within

fourteen days of the judgment. Appendix G.

The circuits have struggled over how to treat late criminal appeals in light of

Rule 4 of the Federal Rules of Appellate Procedure. The circuits have dealt with this

problem in a number of ways ranging from outright dismissal of a criminal appeal,

permitting relief in the form of a delayed appeal, remanding to the district court for

a hearing, automatically allowing a late appeal as well as an outright call for reexamination of Rule 4(b)(4).

As an example, the Eighth Circuit has held that the district court's

acceptance of the notice of appeal is a grant of additional time. United States v.

Gibson, 568 F.2d 111, 112 (8th Cir.1978) United States v. Williams, 508 F.2d 410

(8th Cir.1974) United States v. Mills, 430 F.2d 526 (8th Cir.1970), cert. denied, 400

U.S. 1023, 91 S.Ct. 589, 27 L.Ed.2d 636 (1971). The Ninth and Tenth Circuits have

rejected the Eighth Circuit's rule and have remanded such cases to the district court

for an excusable neglect determination. United States v. Lucas, 597 F.2d 243, 245

(10th Cir. 1979); United States v. Stolarz, 547 F.2d 108, 111-12 (9th Cir.1976), cert.

denied, 434 U.S. 851, 98 S.Ct. 162, 54 L.Ed.2d 119 (1977). Cf. United States v.

Whitaker, 722 F.2d 1533 (11th Cir.1984) (motion for release pending appeal was

treated as requisite jurisdictional notice of appeal, rather than remanding case to

the district court for an excusable neglect determination).

Courts have regularly held that medical conditions are factor in considering

whether to make a downward departure in the sentencing guidelines. See generally,

US. v. Ghannam, 899 F.2d 327 (4th Cir. 1990); US. v. Greenwood, 928 F.2d 645

(4th Cir. 1991); U.S. v. DePew, 751 F. Supp. 1195 (E.D.Va. 1990); U.S. v. Carey, 895

F.2d 318 (7th Cir. 1990). The court in U.S. v. Baron, 914 F. Supp. 660 (1995) set out

clear guidelines in considering whether to make a downward departure by

examining whether the Defendant's physical impairment meets the following

standards: "a) serious and imminent medical threats b) which would be made worse

by incarceration and/or c) which the Federal Bureau of Prisons could not adequately

treat."

Petitioner, at the time of sentencing, was suffering from a very serious and

possibly life threatening medical condition. He continues to suffer from the same

condition today, albeit in a Federal Penitentiary.

The Sixth Amendment right to effective assistance of trial counsel, necessary

to protect the fundamental right to a fair trial, demands that an attorney , who is

well aware that incarceration most definitely will make his client's medical

condition worse, has an obligation to advocate for a downward deviation in

sentencing.

In light of the split in the circuits regarding Rule 4, as well as Sixth

Amendment fundamental right to effective representation, the questions presented

are as follows:

Whether, under of F.R.A.P. Rule 4(b)(4), a court may extend the appeal

period in a criminal case, where appellant's untimely notice of appeal

was unambiguously and directly due to constitutionally ineffective

assistance of counsel?

Whether appellant's Sixth Amendment right to assistance of counsel

was violated by defense attorney's failure to advocate for a downward

deviation in his sentence based on Petitioner's serious medical

condition and his failure to object to the court not factoring in

Petitioner's serious medical condition in his sentencing.

Whether trial counsel's failure to take an appeal for an indigent

defendant, is by itself an adequate basis for good cause and excusable

neglect wherein there is no entry in the Docket showing that counsel

for indigent defendant voluntarily withdrew or was terminated on any

111

date, including but not limited to the period from when judgment was

pronounced to the date of filing of appellant's pro se notice of appeal?

Whether, in light of the Supreme Court's holding in Hamer

Neighborhood Services of Chicago, Rule 4(b)(1) is not a jurisdictional

rule but may be waived or forfeited?

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

TABLE OF CONTENTS................................................................................................v

TABLE OF AUTHORITIES ........................................................................................vii

OPINIONSBELOW .....................................................................................................1

JURISDICTION............................................................................................................1

RULEINVOLVED ........................................................................................................1

STATEMENT OF THE CASE.......................................................................................2

REASONS FOR GRANTING THE WRIT ....................................................................3

AN IMPORTANT CIRCUIT SPLIT NEEDS TO BE DECIDED BY

THIS COURT. WHETHER, UNDER F.R.A.P. RULE 4(b)(4), A

COURT MAY EXTEND THE APPEAL PERIOD IN A CRIMINAL

CASE, WHERE APPELLANT'S TRIAL ATTORNEY FAILED TO

FILE A TIMELY NOTICE OF APPEAL ......................................................3

APPELLANT'S UNTIMELY NOTICE OF APPEAL WAS DIRECTLY

DUE TO CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF

COUNSEL......................................................................................................7

Mr. Kelly Assumed His Attorney Had Filed An Appeal For Him....... 7

APPELLANT'S SIXTH AMENDMENT RIGHT TO ASSISTANCE OF

COUNSEL WAS VIOLATED BY DEFENSE ATTORNEY'S

FAILURE TO ADVOCATE FOR A DOWNWARD DEVIATION IN

HIS SENTENCE BASED ON MR. KELLY'S SERIOUS MEDICAL

CONDITION AND HIS FAILURE TO OBJECT TO THE COURT

NOT FACTORING IN APPELLANT'S SERIOUS MEDICAL

CONDITION IN HIS SENTENCING...........................................................9

COUNSEL'S FAILURE TO FILE AN APPEAL IS A BASIS FOR

GOOD CAUSE OR EXCUSABLE NEGLECT............................................14

RECENT UNANIMOUS SUPREME COURT RULING IN HI4MER

V NEIGHBORHOOD HOUSING SERVICES OF CHICAGO, ET

AL., IS ON POINT: RULE 4(b)(1) IS NOT A NOT A

JURISDICTIONAL RULE REQUIRING DISMISSAL OF THE

APPEAL WHICH MAY BE WAIVED OR FORFEITED BY THE

APPELLATE COURT..................................................................................16

WHY THIS LATE APPEAL SHOULD NOTBE DISMISSED..................19

Simply Dismissing This Appeal And Remitting Mr. Kelly To His

Section 2255 Remedy Would Preciitate A Number Of

Unfortunate Consequences................................................................. 19

THE COURT IN THE EXERCISE OF ITS SUPERVISORY POWERS

SHOULD REMAND THE MATTER TO THE FOURTH CIRCUIT

COURT OF APPEALS WITH DIRECTIONS FOR A FULL

BRIEFING AND ARGUMENT ON PETITIONER'S INEFFECTIVE

ASSISTANCE OF COUNSEL CLAIM .......................................................21

The Public, Even the Most Seriously ill, Have an Interest in and

a Right to Effective Assistance of Counsel and the Fairness of

Judicial Proceedings............................................................................ 21

CONCLUSION............................................................................................................22

APPENDIX

TABLE OF AUTHORITIES

CASES

Arsenault v Massachusetts,

393 U.S. 5 (1968) .................................................................................................22

Bowles v. Russell,

551 U.S. 205 (2007) .............................................................................................18

Cartwright v. United States,

410 F.2d 122 (6th Cir. 1969) ................................................................................. 5

Chapman v. United States,

469 F.2d 634 (5th Cir.1972) ................................................................................ 15

Colombe v Connecticut,

367 U.S. 568 (1961) ............................................................................................. 22

Escobedo v. Illinois,

378 U.S. 478 (1964) ............................................................................................. 22

Esposito v. United States,

135 F.3d 111 (2d Cir.1997) .............................................................................. 5, 20

Frazier v Heebe,

482 U.S. 641 (1987) .............................................................................................20

Gilbert v. California,

388 U.S. 263 (1967) .............................................................................................22

Griggs v. Provident Consumer Discount Co.,

459 U. S. 56 (1982) .............................................................................................. 18

Halicki v. Louisiana Casino Cruises,

151 F.3d 465 (5th Cir. 1998) ...........................................................................15-16

Hamer v. Neighborhood Housing Services of Chicago, et. al,

138 S. Ct. 13 (2017) .................................................................................. iv, 16, 19

Johnson v. United States,

405 F.2d 1072 (D.C. Cir. 1968) ............................................................................. 5

Vii

Jones v. United States,

783 F.2d 1477 (9th Cir. 1986) ...............................................................................9

Kon trick v. Ryan,

540 U.S. 443 (2004) ............................................................................................18

Pioneer Investment Services Co. v. Brunswick Associate,

507 U.S. 380,113 S. Ct. 1489,123 L. Ed. 2d 74 (1993) .................................14, 15

Pointer v Texas,

380 U.S. 400 (1965) .............................................................................................22

Sharp v. Puckett,

930 F.2d 450 (5th Cir. 1991) ................................................................................15

Strickland v Washington,

446 U.S. 668 (1984) ..................................................................................9, 10, 20

Stutson v. United States,

516 U.S. 193,116 S. Ct. 600,133 L. Ed. 2d 571 (1996) ................................... 6, 14

United States v. Andrews,

790 F.2d 803 (10th Cir. 1986), cert. denied, 107 S.Ct. 1898, 481 U.S.

1018, 95 L.Ed.2d 505 (1987) .................................................................................4

United States v. Baird,

109 F.3d 856 (3d Cir. 1997).................................................................................12

United States. v. Baron,

914 F. Supp. 660 (1995) ..................................................................................ii, 11

United States v. Bergeron,

74 F.3d 1238 (5thCir.1995)..................................................................................15

United States v. Carey,

895 F.2d 318 (7th Cir. 1990) ...........................................................................ii, 11

United States v. Clark,

51 F.3d 42(1995)...........................................................................................14, 15

United States v. Clark,

193 F.3d 845 (5th Cir. 1999) .....................................................................5, 14, 16

Viii

United States v. Cross,

121 F.3d 234 (6th Cir. 1997) ...............................................................................12

United States v. Day,

969 F.2d 39 (3rd Cir. 1992) .................................................................................12

United States v. DePe w,

751 F. Supp. 1195 (E.D.Va. 1990)..............................................................ii, 10-11

United States v. Ellis,

419 F.3d 1189 (11th Cir. 2005) ...........................................................................12

United States v. Fuller,

332 F.3d 60 (2d Cir. 2003)...............................................................................4, 20

United States v. Ghannam,

899 F.2d 327 (4th Cir. 1990) ...........................................................................ii, 10

United States v. Gibson,

568 F.2d 111 (8th Cir.1978) ....................................................................................i

United States v. Gipson,

985 F.2d 212 (5th Cir.1993) ................................................................................14

United States v. Greenwood,

928 F.2d 645 (4th Cir. 1991) ...........................................................................ii, 10

United States v. Lea chman,

309 F.3d 377 (6th Cir. 2002) .................................................................................4

United States v. Kim,

896 F.2d 678 (2d Cir. 1990).................................................................................12

United States v. Lucas,

597 F.2d 243 (10th Cir.1979) ................................................................................ii

United States v. Marbley,

81 F.3d 51 (7th Cir.1996) ......................................................................................6

United States v. Martinez,

136 F.3d 972 (4th Cir. 1998) .................................................................................9

United States v. McKenzie,

99 F.3d 813 (7th Cir. 1996) ...................................................................................6

United States v. Meyers,

406 F.2d 1015 (4th Cir. 1969) ...............................................................................5

United States v. Mills,

430 F.2d 526 (8th Cir.1970), cert. denied, 400 U.S. 1023,

91 S.Ct. 589, 27 L.Ed.2d 636 (1971) ......................................................................i

United States v Morgan,

74 S. Ct. 247 ........................................................................................................23

United States v. Newsom,

508 F.3d 731 (2007).............................................................................................12

United States v. Peak,

992 F.2d 39 (4th Cir.1993) ....................................................................................7

United States v. Reyes,

559 F.2d 351 (4th Cir. 1985) .................................................................................3

United States v. Reyes,

759 F.2d 351 (4th Cir.), cert. denied, 106 S.Ct. 164,

474 U.S. 857, 88 L.Ed.2d 136 (1985) ....................................................................4

United States v. Robertson,

196 Fed.Appx. 216 (4th Cir.2006).........................................................................8

United States v. Rogers,

423 F.3d 823 (8th Cir. 2005) ...............................................................................12

United States v. Scott,

124 F.3d 1328 (10th Cir.1997) ........................................................................5, 20

United States v. Smith,

267 F.3d 1154 (D.C. Cir. 2001) ...........................................................................12

United States v. Stolarz,

547 F.2d 108(9th Cir.1976), cert. denied, 434 U.S. 851,

98 S.Ct. 162, 54 L.Ed.2d 119 (1977) .....................................................................ii

United States v. West,

240 F.3d 456 (5th Cir. 2001) ...............................................................................19

United States v. Whitaker,

722 F.2d 1533 (11th Cir.1984) ..............................................................................ii

United States v. Williams,

508 F.2d 410 (8th Cir.1974) ...................................................................................i

Youkelsone v. FDIC,

660 F.3d 473 (CADC 2011) ................................................................................18

STATUTES & RULES

18 U.S.C. § 2...................................................................................................................2

21 U.S.C. § 841(a)(1)......................................................................................................2

21 U.S.C. § 846...............................................................................................................2

28 U.S.C. § 1254(1) ........................................................................................................1

28 U.S.C. § 2255.......................................................................................4, 5, 15, 19, 20

Fed. R. App. P. 4 ....................................................................................................i, iii, 2

Fed. R. App. P. 4(b) ........................................................................................................ 6

Fed. R. App. P. 4(b)(1).......................................................................................iv, 18, 19

Fed. R. App. P. 4(b)(1)(A).............................................................................................18

Fed. R. App. P. 4(b)(1)(00 ........................................................................................i, 3

Fed. R. App. P. 4(b)(4) ................................................................................... i, iii, 3, 6, 22

Fed. R. App. P. 4(a)(5)..................................................................................................18

Fed. R. App. P. 4(a)(5)(c) ....................................................................................... 17, 18

CONSTITUTIONAL AMENDMENTS

U.S. const. amend VI ............................................................................................1, 4, 9

U.S. const. amend. XIV.................................................................................................1

UNITED STATES SENTENCING GUIDELINES

u.5.5.G. 5K2.21 ...........................................................................................................12

IN THE

SUPREME COURT OF THE UNITED STATES

XXXXX TERM, 2018

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review

the judgment below.

OPINIONS BELOW

The opinion of the U.S. Court of Appeals for the Fourth Circuit

reflected in its Court Order is provided in Appendix A. The Judgment of the

U.S. District Court for the District of Maryland is unreported. Appendix B.

JURISDICTION

The judgment of the U.S. Court of Appeals for the Fourth Circuit was

entered on February 22, 2018. This Court has jurisdiction under 28 U.S.C. §

1254(1).

RULE AND CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides in

pertinent part:

In all criminal prosecutions, the accused shall enjoy the right to have

the Assistance of Counsel for his defense.

The Fourteenth Amendment to the United States Constitution

provides in pertinent part:

Section 1. All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall make

or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

Rule 4 of the Federal Rules of Appellate Procedure is reproduced

in Appendix F.

STATEMENT OF THE CASE

Petitioner, Joshua Kelly, is a State of Maryland prisoner, currently

being housed in Federal Penitentiary in Victorville, California. He has a

history of suffering from a very serious medical condition.

On December 17, 2015, Petitioner was indicted in the United States

District Court for the District of Maryland with the following Counts: Count

One

Conspiracy to Distribute a Controlled Substance in violation of 21

U.S.C.§ 846 and Count Two

Possession of Controlled Substance with

Intent to Distribute and aiding and abetting in violation of 21 U.S.C. §

841(a)(1),18 U.S.C. § 2.

Subsequent to a plea of guilty for Possession of Controlled Substance

with Intent to Distribute and Aiding and Abetting, Judgment in this case was

entered against Petitioner on July 15, 2016 and the District Court sentenced

Mr. Kelly to 120-month imprisonment. Appendix B.

On July 28, 2017, Petitioner wrote directly to the United States Court

of Appeals for the Fourth Circuit inquiring as to the status of his appeal. The

4th

Circuit acknowledged receipt of Petitioner's pro se document and

construed it as a "notice of appeal." The notice of appeal was accepted by the

District Court. Appendix D. (emphasis added.)

Petitioner's pro se notice of appeal reads:

"... I am requesting a status update as to my direct appeal. I do

not know how long it takes before the Court of Appeals decides

on my case, and my Attorney Alan R L Bussard informed me

that it could take some time. I haven't heard from my attorney.

Can you please let me know the status of my appeal with the

Fourth Circuit?" Appendix D.

The Fourth Circuit appointed counsel under the CJA act on August 10,

2017. Appendix C. On February 22, 2018, the Fourth Circuit entered an

Order dismissing Petitioner's appeal as untimely under Fed. R. Appl. P.

4(b)(1)(A), Fed. R. Appl. P. 4(b)(4) and United States v. Reyes, 559 F.2d 351,

353 (4th Cir. 1985). Appendix A.

REASONS FOR GRANTING THE PETITION

AN IMPORTANT CIRCUIT SPLIT NEEDS TO BE DECIDED BY

THIS COURT. WHETHER, UNDER F.R.A.P. RULE 4(b)(4), A

COURT MAY EXTEND THE APPEAL PERIOD IN A CRIMINAL

CASE, WHERE APPELLANT'S TRIAL ATTORNEY FAILED TO

FILE A TIMELY NOTICE OF APPEAL

The question is a by-product of the differing deadlines in Rule 4 of the

Federal Rules of Appellate Procedure. Under FRAP 4(b)(1)(00, a criminal

defendant wishing to appeal a conviction must file a notice of appeal within

fourteen days of the judgment. Extensions in criminal cases may be granted

without notice and motion. Because of this, the court of appeals may deem

the district court's acceptance of a late notice of appeal as a district court

extension of the appeal period. United States v. Andrews, 790 F.2d 803 (10th

Cir. 1986), cert. denied, 107 S.Ct. 1898, 481 U.S. 1018, 95 L.Ed.2d 505 (1987).

See United States v. Reyes, 759 F.2d 351 (4th Cir.), cert. denied, 106 S.Ct.

164, 474 U.S. 857, 88 L.Ed.2d 136 (1985), discussing split in the circuits on

this point.

The circuits have struggled over how to treat late appeals based on

counsel's alleged failure to file a timely appeal. Some allow habeas corpus

relief in the form of a delayed appeal. United States v. Leachman, 309 F.3d

377, n.4 (6th Cir. 2002). See United States v. Fuller, 332 F.3d 60 (2d Cir.

2003).

In Leachman, Petitioner filed a notice of appeal and it was denied as

untimely. Petitioner subsequently filed a habeas petition under 28 U.S.C. §

2255 citing ineffective assistance of counsel under the Sixth Amendment for

failure to timely file his notice of appeal, and requesting relief in the form of a

delayed direct appeal. The judge granted the petition and a second notice of

appeal was filed.

In Fuller, the Court showed understanding why appellant's late appeal

should be granted:

"If in this case we were simply to dismiss and remit the

defendant to his section 2255 remedy, we would precipitate at

least one and possibly two other unfortunate consequences.

First, we would incur the waste of time and judicial resources to

process the section 2255 motion. Second, we would expose the

defendant to the risk that he would use up his first opportunity

to file a section 2255 motion, thereby subjecting him to the

stringent standards applicable to a second section 2255 motion.

See 28 U.S.C. § 2255. Although the defendant would have a

substantial argument that his initial section 2255 motion should

not count as a "first" motion for purposes of section 2255,

because it was needed to obtain entitlement to direct review,

rather than to present a collateral challenge after direct review,

see Esposito v. United States, 135 F.3d 111, 112-14 (2d

Cir, 1997); United States v. Scott, 124 F.3d 1328, 1329-30 (10th

Cir.1997), that argument itself would precipitate litigation that

should be avoided if possible. Third, dismissal of the appeal

would leave the current judgment in place, at least until the

granting of a motion under section 2255, thereby risking

expiration of a substantial part and possibly all of the one-year

limitations period of 28 U.S.C. § 2255, unless the time devoted to

taking the steps required to obtain an appealable judgment were

deemed to toll the one-year period."

Some circuits treat counsel's failure as a possible basis for good cause

or excusable neglect. United States v. Clark, 193 F.3d 845 (5th Cir. 1999).

In Clark, the Court attorney's failure to file notice of appeal pursuant to

defendant's request would be excusable neglect for filing of untimely appeal.

Some circuits actually remand to the district court for a hearing on the

truthfulness of appellant's claim and the circumstances of the tardy appeal.

Cartwright v. United States, 410 F.2d 122 (6th Cir. 1969); United States v.

Meyers, 406 F.2d 1015 (4th Cir. 1969); Johnson v. United States, 405 F.2d

1072 (D.C. Cir. 1968). As a matter of fact, the 4th Circuit in Meyers required

a plenary hearing to be held to determine if defendant could bring himself

within rule permitting belated appeal.

Some circuits automatically allow a late appeal. United States v.

McKenzie, 99 F.3d 813 (7th Cir. 1996). In McKenzie, appellant's notice of

appeal was filed on September 7, 1995, more than ten days after the final

judgment was docketed on August 15, 1995, and thus was untimely under

Fed.R.App.P. 4(b). In support of his pro se motion for an extension of time to

file an appeal, McKenzie alleged that he was deprived of his opportunity to

file a timely notice of appeal because his attorney was on vacation and

unreachable during the ten-day appeal period. After an evidentiary hearing,

the district court entered an order granting McKenzie the right to appeal

One circuit has called for re-examination of F.R.A.P. Rule 4(b)(4),

contending its requirement that defendant show good cause or excusable

neglect when it is based on counsel's failure to file a timely appeal is

circuitous and delays rather than expedites criminal appeals. United States

v. Marbley, 81 F. 3d 51 (7th Cir.1996).

The Marbley court expressed its dissatisfaction with Rule 4(b):

"It might be better to permit untimely appeals in any criminal

case in which the district judge and the court of appeals agreed

that the appeal should be heard. Although criminal judgments

used not even to be appealable, today the right of a criminal

defendant to appeal is considered so fundamental that the usual

consequence of an inexcusable failure to perfect the appeal is

merely to have the appeal heard later through the Sixth

Amendment route described above. See, e.g., Stutson v. United

States, 516 U.S. 193, 116 S.Ct. 600, 133 L.Ed.2d 571 (1996) (per

curiam). This oblique approach serves no one's interest that we

can see and introduces real delay into the system of criminal

justice.

APPELLANT'S UNTIMELY NOTICE OF APPEAL WAS DIRECTLY

DUE TO CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF

COUNSEL

Mr. Kelly Ass umed His Attorney Had .FYledAn Appeal For Him

This case represents an egregious example of ineffective assistance of

counsel. Mr. Kelly's pro se notice of appeal was filed on July 28, 2017,

virtually one year after sentencing. Appendix D.

At the sentence hearing, the Trial Court Judge clearly instructed Mr.

Kelly and his attorney of Mr. Kelly's right to file a timely notice of appeal as

follows:

"Mr. Kelly, you can appeal your conviction if you believe that your

conviction was somehow unlawful or involuntary or if there's some

other fundamental defect in procedure that was not waived by your

guilty plea. Technically, you also may appeal your sentence if you

believe that it is unlawful.......If you wish to appeal, you must file a

notice of your intention to do so in this court within 14 days of today.".

Appendix E (App.17.)

There can be no question that defense counsel was present and

understood the Court's instruction. The case law is clear that failing to file a

timely notice of appeal is ineffective assistance of counsel, when it is

requested by a defendant. In US. v. Peak, 992 F.2d 39 (4th Cir.1993), the

court held:

We join those circuits that hold that a criminal defense attorney's

failure to file a notice of appeal when requested by his client deprives

the defendant of his Sixth Amendment right to the assistance of

counsel, notwithstanding that the lost appeal may not have had a

reasonable probability of success. U.S. v. Peak, 992 F.2d 39, 42 (4th

Cir. 1993).

Similarly, in US. v. Robertson, 196 Fed.Appx. 216 (4th Cir.2006), the

U.S. Court of Appeals granted a certificate of appealability on a single claim

of ineffective assistance of counsel in which Petitioner Robertson claimed that

he was denied the right to a direct appeal when counsel failed to comply with

his request to file a notice of appeal. After quoting the holding of Peak, the

4th Circuit Court of Appeals in Robertson said, "In light of Robertson's claim,

under penalty of perjury, that counsel denied his request to file an appeal

coupled with counsel's lack of memory, there is a genuine issue of material

fact concerning whether Robertson was denied effective assistance of

counsel." Id.

Although we have no direct evidence that Mr. Kelly requested his

attorney to file a timely notice of appeal, it can be inferred that Mr. Kelly

expected his defense attorney to file a timely notice of appeal. His July 28,

2017 pro se letter to the United States District Court Clerk, which was

construed by the District Court as a notice of appeal, clearly illustrates that

he had expected his attorney to file an appeal. He writes directly:

"...I am respectfully requesting an update on my direct appeal. I dont

know how long it takes before the Court of Appeals decides my Case I

know I were Sentence a year ago and my Attorney Alan R L Bussard

informed me that it could take Some time. I havent heard from my

attorney. Can you please let me know the status of my appeal with the

fourth Circuit." Appendix D.

Assuming arguendo that Mr. Kelly did not ask his attorney to file, it is

reasonable that the last "service" offered by trial counsel is to file a timely

notice of appeal for a criminal defendant

especially when the trial court

instructed the defendant in the presence of his attorney of his right to appeal.

APPELLANT'S SIXTH AMENDMENT RIGHT TO ASSISTANCE OF

COUNSEL WAS VIOLATED BY DEFENSE ATTORNEY'S FAILURE

TO ADVOCATE FOR A DOWNWARD DEVIATION IN HIS

SENTENCE BASED ON MR. KELLY'S SERIOUS MEDICAL

CONDITION AND HIS FAILURE TO OBJECT TO THE COURT NOT

FACTORING IN APPELLANT'S SERIOUS MEDICAL CONDITION

IN HIS SENTENCING

The Sixth Amendment to the United States Constitution affords

individuals, among other things, the right to "have the Assistance of Counsel

for his defense". In this regard, "The sixth amendment guarantees a criminal

defendant the right to effective assistance of counsel." Strickland v.

Washington, 466 U.S. 668, 686-87,104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674

(1984).

This right applies both at trial and at sentencing. See Jones v. United

States, 783 F.2d 1477, 1482 (9th Cir. 1986). The Petitioner must show that

the attorney's performance was not in accord with prevailing professional

norms, and that the attorney's deficient performance prejudiced him.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

"A defendant can raise the claim of ineffective assistance of counsel

direct appeal if and only if it conclusively appears from the record that his

counsel did not provide effective assistance . . . ." United States v. Martinez,

136 F.3d 972, 979 (4th Cir. 1998).

To prove ineffective assistance the defendant must satisfy two

requirements:

(1)

"that counsel's representation fell below an objective standard of

reasonableness;" and (2) "that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

The first requirement of Strickland is met in our case many times over

because Mr. Kelly's defense attorney committed a stunning array of errors

plummeting his representation below an objective standard of

reasonableness.

Maybe the most egregious of these errors is leaving unchallenged the

court's failure to consider Mr. Kelly's serious medical condition in

determining his sentence. In fact, Mr. Kelly's counsel did not even bring up

his medical condition. Nowhere in the record does it show that Mr. Kelly's

counsel ever made any type of argument for a downward deviation in the

sentence because of the medical condition, did not proffer any proof of

whether it was even possible to receive proper treatment in the prison system

and the consequences of Mr. Kelly not receiving proper treatment.

Courts have regularly held that medical conditions are factor in

considering whether to make a downward departure in the sentencing

guidelines. See generally, US. v. Ghannam, 899 F.2d 327 (4th Cir. 1990);

U.S, v. Greenwood, 928 F.2d 645 (4th Cir. 1991); U.S, v. DePew, 751 F. Supp.

1195 (E.D.Va. 1990); US. v. Carey, 895 F.2d 318 (7th Cir. 1990). The court in

US. v. Baron, 914 F. Supp. 660 (1995) set out clear guidelines in considering

whether to make a downward departure by examining whether the

Defendant's physical impairment meets the following standards: "a) serious

and imminent medical threats b) which would be made worse by

incarceration and]or c) which the Federal Bureau of Prisons could not

adequately treat."

Mr. Kelly, at the time of sentencing, was suffering from a very serious

s and possibly life threatening medical condition. 1 The specifics of his

medical condition was dealt with in a Sealed Court Proceedings.2 He

continues to suffer from the same condition today albeit in a Federal

Penitentiary.

Mr. Kelly's attorney was well aware that incarceration most definitely

makes Mr. Kelly's condition worse AND that the prison system could not

adequately treat Mr. Kelly. Despite this, Mr. Kelly's counsel did not proffer

any evidence whatsoever during the sentencing hearing about these serious

medical issues, and at no time put forth an argument to the court for

downward deviation of the guidelines based on Mr. Kelly's serious medical

condition.

1 At sentencing, the Trial Judge acknowledged that Mr. Kelly has serious

medical problems: "He has medical problems which most certainly require

treatment."(Appendix E-App 15.)

2 Appendix H

Sealed Emergency Medical Hearing held on July 12, 2016

prior to the imposition of sentence.

Not only did Mr. Kelly's counsel fail to advocate for a downward

deviation, although Mr. Kelly's medical condition was screaming out for it, he

also remained silent as a 15 level upward deviation was made based on an

unrelated, uncharged alleged non-fatal shooting.

First he failed to dispute the proffer by the prosecutor in relation to the

uncharged shooting. Secondly, he failed to object to the court's improper 15

level upward deviation of the guidelines based on this unrelated, uncharged

alleged shooting.

The court in U.S. v. Newsom, 508 F.3d 731 (2007) in discussing this

issue stated:

"The Sentencing Commission has never explicitly commented on

whether a factual relationship is required between the uncharged or

dismissed charges and the offense of conviction. Nevertheless, §

5K2.21's historical notes favorably reference a number of cases where

circuit courts held that an upward departure was only permissible if

there was a relationship between the uncharged and charged offenses.

See United States v. Kim, 896 F.2d 678, 682-84 (2d Cir. 1990); United

States v. Baird, 109 F.3d 856, 865 (3d Cir. 1997); United States v.

Cross, 121 F.3d 234, 239 (6th Cir. 1997). Similarly, since the adoption

of § 5K2.21, the majority of other circuits appear to require the

existence of some connection between uncharged conduct and the

offense of conviction. See United States v. Ellis, 419 F.3d 1189, 1193

(11th Cir. 2005); United States v. Rogers, 423 F.3d 823, 828 (8th Cir.

2005); see also United States v. Smith, 267 F.3d 1154, 1164 (D.C. Cir.

2001)

Effective assistance of counsel requires a working knowledge of the

Sentencing Guidelines. United States v. Day, 969 F.2d 39 (3rd Cir. 1992).

"Because the Sentencing Guidelines have become a critical, and

in many cases, dominant facet of federal criminal proceedings,

we can say, however, that familiarity with the structure and

basic content of the Guidelines (including the definition and

implications of career offender status) has become a necessity for

counsel who seek to give effective representation." Id. at 43.

In our case, defense counsel misled Mr. Kelly to believe that the

upward deviation related to the uncharged shooting and the lack of

downward deviation that should have been considered based on Mr. Kelly's

serious medical condition fell within the applicable laws and guidelines,

when, in fact, they did not.

Besides, how could Petitioner really understand his various options

when the plea agreement was not even put in writing prior to the rearraignment hearing? This lack of a writing is compounded by the fact that

not all of the terms of the agreement had even been worked out prior to the

hearing.

Basically, Mr. Kelly had to digest everything at the hearing, without

the benefit of the clarity gained by being given time to think things over.

From the totality of circumstance it sure seems like Mr. Kelly's counsel was

more interested in getting the plea done than zealously representing Mr.

Kelly (with further evidence of this being by the waiver of the pre-sentencing

report, so the sentencing could take place at the same hearing as the rearraignment.)

This type of conduct fell below the objectively reasonable standard.

4. COUNSEL'S FAILURE TO FILE AN APPEAL IS A BASIS FOR

GOOD CAUSE OR EXCUSABLE NEGLECT

In United States v. Clark, 193 F.3d 845 (5th Cir. 1999), the Court

treated counsel's failure to file an appeal as a basis for good cause or

excusable neglect.

In Clark, the Court attorney's failure to file notice of appeal pursuant

to defendant's request would be excusable neglect for filing of untimely

appeal. Clark alleged that he demonstrated "excusable neglect" because he

asked his court-appointed attorney to file his notice of appeal and his

attorney refused to do so. The government's response is that since the errors

of one's attorney are imputed to him, Clark's appeal should be dismissed. See,

e.g., Pioneer Inv. Services Co. v. Brunswick Assoc., 507 U.S. 380, 396-98,113

S.Ct. 1489,1498-1500,123 L.Ed.2d 74 (1993); Clark, 51 F.3d at 44 & n. 6

("We reject Clark's argument that there was excusable neglect because any

fault was that of his counsel, not of his own personally.").

The Clark Court rejected this principal as wholly inapplicable to the

instant case. First, the Supreme Court has rejected the extreme

interpretation of Pioneer that a litigant is in all circumstances held to their

attorney's negligent failure to timely file a notice of appeal. See Stutson v.

United States, 516 U.S. 193,194,116 S.Ct. 600,602,133 L.Ed.2d 571 (1996)

(percuriam) ("In Pioneer, we held that a party could in some circumstances

rely on his attorney's inadvertent failure to file a proof of claim in a timely

manner.., as 'excusable neglect' under the bankruptcy rules.")

Second, both Pioneer and Clark involved situations where a litigant's

attorney, in good faith, misinterpreted the federal rules and, as a result, filed

the litigant's notice of appeal late. See Pioneer, 507 U.S. at 396, 113 S.Ct.

1489; Clark, 51 F.3d at 42-44. By contrast, Clark alleges the wholesale denial

of his right to appeal due to the ineffective assistance of counsel. See United

States v. Gipson, 985 F.2d 212, 215 (5th Cir.1993) Sharp v. Puckett, 930 F.2d

450, 452 (5th Cir.1991) (holding that when counsel denied the petitioner the

right to appeal, neither the Strickland prejudice prong nor the harmless-error

test is appropriate).

The Clark Court opined:

"In an unpublished opinion, we vacated a district court's denial of a § 2255

motion based on a similar claim. See United States v. Bergeron, 74 F.3d 1238

(5thCir.1995). We reasoned that

Counsel is obliged to protect his client's right to appeal. See

Chapman v. United States, 469 F.2d 634, 636 (5th Cir.1972). If

Bergeron did request an appeal, counsel was thus obliged to

preserve his right to appeal. The record indicates that counsel

did not file a notice of appeal. Neither did counsel seek to

withdraw from representation of Bergeron.... If the facts alleged

by Bergeron are true, then Bergeron received ineffective

assistance of counsel for counsel's failure to file a notice of

appeal. Id.

In situations like the instant case, we are not faced with the fear that

allowing excusable neglect based on an attorney mistake would lead to

"almost every appellant's lawyer... plead[ing] his own inability to understand

the law when he fails to comply with a deadline." Halicki v. Louisiana Casino

Cruises, 151 F.3d 465,470 (5th Cir.1998). Rather, assuming Clark's

allegations are true, we are faced with a clear case of ineffective assistance of

counsel, which is sufficient to prove excusable neglect." United States v.

Clark, 193 F.3d 845,847 (5th Cir. 1999).

Here, it is undisputed that counsel for Kelly did not file a notice of

appeal. Additionally, the record indicates that counsel for Kelly did not seek

to withdraw from representation of Kelly. There is no entry in the Docket

showing that counsel for Kelly voluntarily withdrew or was terminated on

any date, including but not limited to 7/15/2016, the day judgment was

pronounced to 7/28/2017 , date of filing of Mr. Kelly' pro se notice of appeal.

(Appendix G, emphasis added).

For all practical purposes, trial counsel for Petitioner remained his

attorney of record up until current Petitioner counsel was appointed by the

Fourth Circuit. The failure of trial counsel to file an appeal on behalf of Mr.

Kelly is a basis for good cause or excusable neglect.

RECENT UNANIMOUS SUPREME COURT RULING IN HAMER V

NEIGHBORHOOD HOUSING SERVICES OF CHICAGO, ETAL., IS

ON POINT: RULE 4(b)(1) IS NOT A NOT A JURISDICTIONAL RULE

REQUIRING DISMISSAL OF THE APPEAL WHICH MAY BE

WAIVED OR FORFEITED BY THE APPELLATE COURT

In Hamer v. Neighborhood Housing Services of Chicago, et.al, 138

S.Ct. 13 (2017), a unanimous United States Supreme Court held that a rule

of appellate procedure limiting the length of an extension for filing a notice of

appeal is not a jurisdictional rule requiring dismissal of the appeal if the time

limit is exceeded, but a "mandatory claim-processing rule" that can be waived

or forfeited. Because Congress controls the jurisdiction of federal courts, only

Congress can limit jurisdiction, including through regulations governing the

time for filing an appeal.

Hamer's notice of appeal, filed in accordance with the district-court

order more than 30 days after expiration of the original time for bringing the

appeal, was permissible under Section 2107(c) but untimely under Rule

4(a)(5)(C). But because the limit on extensions of time appears only in the

court-made rule and not the congressionally enacted statute, it cannot be

jurisdictional. NHSC had argued that the 30-day limit in Rule 4(a)(5)(C) did

have a statutory basis because a similar 30-day limit appeared in the pre

1991 version of Section 2107(c) and its removal in 1991 was "probably

inadvertent." The Supreme Court rejected that argument, holding that a rule

of appellate procedure limiting the length of an extension for filing a notice of

appeal is not a jurisdictional rule requiring dismissal of the appeal if the time

limit is exceeded, but a "mandatory claim-processing rule" that can be waived

or forfeited.

While the Hammer ruling dealt with Federal Rules of Appellate

Procedure 4(a)(5)(C) in the context of a civil appeal, its holding is very

germane to this criminal appeal.

Federal Rule of Appellate Procedure 4(a)(5)(C) reads as follows:

No extension under this Rule 4(a)(5) may exceed 30 days after

the prescribed time or 14 days after the date when the order

granting the motion is entered, whichever is later.

Federal Rule of Petitioner Procedure 4(b)(1)(A) reads as follows:

(A) In a criminal case, a defendant's notice of appeal must be

filed in the district court within 14 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.

Justice Ruth Bader Ginsburg wrote for the court:

The rule of decision our precedent shapes is both clear and easy

to apply: If a time prescription governing the transfer of

adjudicatory authority from one Article III court to another

appears in a statute, the limitation is jurisdictional; otherwise,

the time specification fits within the claim-processing category.

Several Courts of Appeals, including the Court of Appeals in

Harness case, have tripped over our statement in Bowles that

"the taking of an appeal within the prescribed time is

'mandatory and jurisdictional., " 551 U. S., at 209 (quoting

Griggs v. Provident Consumer Discount Co., 459 U. S. 56,61

(1982) (per curiam)). The "mandatory and jurisdictional"

formulation is a characterization left over from days when we

were "less than meticulous" in our use of the term

"jurisdictional." Kontrick, 540 U. S., at 454.11 The statement

was correct as applied in Bowles because, as the Court there

explained, the time prescription at issue in Bowles was imposed

by Congress. 551 U. S., at 209-213. But "mandatory and

jurisdictional" is erroneous and confounding terminology where,

as here, the relevant time prescription is absent from the U. S.

Code. Because Rule 4(a)(5)(C), not §2107, limits the length of the

extension granted here, the time prescription is not

jurisdictional. See Youkelsone v. FDIC, 660 F. 3d 473,475

(CADC 2011) ("Rule 4(a)(5)(C)'s thirty-day limit on the length of

any extension ultimately granted appears nowhere in the U. S.

Code.").

Similar to Federal Rule of Appellate Procedure 4(a)(5)(C), Rule 4(b)(1)

is not a jurisdictional rule requiring dismissal of the appeal, which may be

waived or forfeited by the Appellate Court. Hamer v. Neighborhood Housing

Services of Chicago, et.al, 138 S.Ct. 13 (2017) (emphasis added.)

Here, the United States Supreme Court is respectfully being afforded

an opportunity to extend the Hammer decision to criminal appeals. If the

Court should decide that the time limit for Rule 4(b)(1) appears only in a

court made rules, and not in a statute, the limitation would be a "claim

processing rule, "and therefore subject to waiver or forfeiture,

WHY THIS LATE APPEAL SHOULD NOT BE DISMISSED

Simply Dismissing This Appeal And Remitting Mr. Kelly To His

Section 2255 Remedy Would Precipitate A Number Of

Unfortunate Consequences

Here, it is clear that Mr. Kelly' failure to take a timely direct appeal

resulted from constitutionally ineffective assistance of counsel.

When constitutionally ineffective assistance of counsel has resulted in

the denial of the petitioner's right to take a direct appeal, the Fifth Circuit

has directed district courts to use a "judicial remedy" of "reinstating" the

judgment and sentence so as to permit a direct appeal. U.S. v. West, 240 F.3d

456, 458-462 (5th Cir. 2001).

The Second Circuit has ruled that when dismissing the appeal as

untimely the court of appeals can also direct that, on remand, the district

court re-enter the judgment so as to enable the defendant to take a timely

direct appeal.

As the court explained:

If in this case we were simply to dismiss and remit the

defendant to his section 2255 remedy, we would precipitate at

least one and possibly two other unfortunate consequences.

First, we would incur the waste of time and judicial resources to

process the section 2255 motion. Second, we would expose the

defendant to the risk that he would use up his first opportunity

to file a section 2255 motion, thereby subjecting him to the

stringent standards applicable to a second section 2255 motion.

See 28 U.S.C. § 2255. Although the defendant would have a

substantial argument that his initial section 2255 motion should

not count as a "first" motion for purposes of section 2255,

because it was needed to obtain entitlement to direct review,

rather than to present a collateral challenge after direct review,

see Esposito v. United States, 135 F.3d 111, 112-14 (2d

Cir.1997) United States v. Scott, 124 F.3d 1328, 1329-30 (10th

Cir.1997), that argument itself would precipitate litigation that

should be avoided if possible. Third, dismissal of the appeal

would leave the current judgment in place, at least until the

granting of a motion under section 2255, thereby risking

expiration of a substantial part and possibly all of the one-year

limitations period of 28 U.S.C. § 2255, unless the time devoted to

taking the steps required to obtain an appealable judgment were

deemed to toll the one-year period. Rather than limit our

disposition to a dismissal, which would precipitate a section

2255 motion, we think the most appropriate disposition is to

dismiss the appeal as untimely and remand to the District Court

with instructions to vacate the judgment and enter a new

judgment from which a timely appeal may be taken. US. v.

Fuller332 F.3d 60, 65 (2d Cir. 2003).

No doubt, upholding the dismissal of this appeal would

precipitate the unfortunate consequences mentioned above. Mr.

Kelly's very serious and potentially life threatening medical

condition screams out for non -dismissal of this appeal.

THE COURT IN THE EXERCISE OF ITS SUPERVISORY POWERS

SHOULD REMAND THE MATTER TO THE FOURTH CIRCUIT

COURT OF APPEALS WITH DIRECTIONS FOR A FULL BRIEFING

AND ARGUMENT ON PETITIONER'S INEFFECTIVE ASSISTANCE

OF COUNSEL CLAIM

The Public, Even the Most Seriously Ill, Have an Interest in and

a Right to Effective Assistance of Counsel and the Fairness of

Judicial Proceedings

In Frazier v Heebe, 482 U.S. 641, 647 (1987) this Court stated "The

Court's supervisory power over federal courts allows the Court to intervene to

protect the integrity of the federal system ..." Here Petitioner's counsel

unreasonably abandoned his obviously seriously ill client's complete defense.3

Because the court ordered medical examination was not done, the decision to

abandon the defense was not reasonable. "... [s]trategic choices -made after

less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation.

In other words, counsel has a duty to make reasonable investigations or to

make a reasonable decision that makes particular investigations

unnecessary." Strickland v Washington, 446 U.S. 668 at 690 (1984).

Federal Circuit Court cases cited above support Petitioner's claim that

trial counsel rendered him ineffective assistance of counsel. Fundamental

fairness requires that Petitioner's claim be given a full and fair review by the

federal court system.

See Sealed Appendix for Court Ordered Medical Examination Appendix

5A-15

To protect the integrity of the federal court system, this Court in the

exercise of its supervisory power should grant Petitioner's Petition for

Certiorari and remand to the Fourth Circuit Court of Appeal with

instructions to permit appeal to proceed.

CONCLUSION

This Court should grant certiorari to resolve the conflicts in the circuit

courts that continue to exist under of F.R.A.P. Rule 4(b)(4). Mr. Kelly has

been clearly prejudiced in this case. He currently sits in jail with nothing to

look forward to than some ten years of prison time.

Here, Mr. Kelly' untimely noticed appeal was unambiguously and

directly due to constitutionally ineffective assistance of counsel. And allowing

the dismissal of his appeal to stand would no doubt precipitate a number of

unfortunate consequences as described above.

The United States Supreme Court has declared that the

constitutionally protected right to counsel applies to all critical stages of the

proceedings, against one accused of crime, defining the term "critical" to

extend to any stage of the prosecution, formal or informal, in Court or out,

where counsel's absence might derogate from the accused's right to a fair

trial. Arsenault vMassachusetts, 89 S. Ct. 35; Gilbert v California, 87 S. Ct.

1951; Pointer v Texas, 85 S. Ct. 1065; Escobedo v Illinois, 87 S. Ct. 1758;

Colombe v Connecticut, 81 S. Ct. 1860.

A judgment of conviction of one who did not effectively waive his

constitutional right to the assistance of counsel for his defense, is void as

having been rendered without jurisdiction. United States v Morgan, 74 S. Ct.

247. In the absence of special authority, a stipulation that operates as a

surrender of substantial rights of a client will not be upheld by the courts. 7

Am Jur 2d, 203-204.

Petitioner has made "a substantial showing of the denial of a

constitutional right," and this Court should grant Petitioner's Petition for

Writ of Certiorari and remand the matter to the Fourth Circuit Court of

Appeals with instructions to uphold Petitioner's Appeal and permit full

briefing.

WHEREFORE, PREMISES CONSIDERED, Kelly prays that this

Court grant his petition for writ of certiorari, order full briefs and oral

arguments, and reverse the court order of the United States Court of Appeals

for the Fourth Circuit.

Respectfully Submitted,

if&wj tq*vl4hJ(1:

Murray Kamionski

Attorney for Petitioner

6821 Dogwood Road

Baltimore, MD 21244

410-504-1852

mkamionski@yahoo.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.