United States v. Vilar, No. 10-521 (2d Cir. 2011)

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Justia Opinion Summary

Defendant and co-defendant were convicted of multiple fraud-related felonies. Defendant timely appealed his criminal conviction and moved to withdraw his direct criminal appeal with leave to reinstate it after he had finished pursuing an application for a writ of habeas corpus. In the alternative, defendant moved for a six month extension to file his appellate brief. The court held that the interests of judicial economy and fairness disfavored staying defendant's direct appeal. The court held, however, that staying the direct appeal by six months would not seriously prejudice the government or the co-defendant. Therefore, the court denied the defendant's motion to withdraw his direct appeal and granted defendant's request for the six month extension.

The court issued a subsequent related opinion or order on August 30, 2013.
The court issued a subsequent related opinion or order on October 1, 2013.

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10-521-cr (L) United States v. Vilar 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Submitted: May 31, 2011 Decided: July 19, 2011) Docket Nos. 10-521(L), 10-580(Con), 10-4639 (Con) - - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, -v.ALBERTO VILAR and GARY ALAN TANAKA, 10-521(Lead) 10-580(Con) 10-4639(Con) Defendants-Appellants.* - - - - - - - - - - - - - - - - - - - - -x Before: DENNIS JACOBS, Chief Judge, JED S. RAKOFF,** District Judge.*** * The Clerk of Court is respectfully instructed to amend the official case caption as shown above. ** The Honorable Jed S. Rakoff of the United States District Court for the Southern District of New York, sitting by designation. The Honorable Debra Ann Livingston, an original member of this panel, recused herself. The remaining two panel members agree on the disposition and decide this *** 1 1 Alberto Vilar moves to withdraw his direct criminal 2 appeal with leave to reinstate it after he has finished 3 pursuing an application for a writ a habeas corpus before 4 the district court below. 5 United States and Vilar s codefendant. 6 Vilar moves for a six-month extension to file his appellate 7 brief. 8 and GRANT Vilar s motion for a six-month extension to file 9 his appellate brief. The motion is opposed by the In the alternative, We DENY Vilar s motion to withdraw his direct appeal 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FOR MOVANT: Vivian Shevitz Brooklyn, NY Jane Simkin Smith Millbrook, NY Susan C. Wolfe Hoffman & Pollok LLP New York, NY FOR RESPONDENT: Benjamin Naftalis Assistant U.S. Attorney U.S. Attorney s Office Southern District of New York New York, NY motion pursuant to Second Circuit Internal Operating Procedure E(b). 2 1 2 PER CURIAM: Alberto Vilar timely appealed his criminal conviction 3 in the United States District Court for the Southern 4 District of New York (Sullivan, J.). 5 withdraw his direct appeal with leave to reinstate it after 6 he has finished pursuing an application for a writ a habeas 7 corpus in the district court. 8 codefendant both oppose this motion on the ground that it 9 will delay the direct appeal. He now moves to The United States and Vilar s The government further argues 10 that grant of the motion would invert the ordinary sequence 11 of proceedings in which a defendant exhausts his direct 12 appeals before pursuing collateral attacks. 13 to withdraw is denied, Vilar moves in the alternative for a 14 six-month extension to file his appellate brief. 15 DENY Vilar s motion to withdraw his direct appeal, but we 16 GRANT Vilar s motion for a six-month extension to file his 17 appellate brief. If his motion We hereby 18 19 20 BACKGROUND In early 2010, Alberto Vilar and Gary Alan Tanaka were 21 convicted of multiple fraud-related felonies by a jury in 22 the United States District Court for the Southern District 3 1 of New York (Sullivan, J.). Their timely appeals were 2 consolidated in this docket. 3 counsel, who contend that his trial counsel inadequately 4 developed the trial record, and thus afforded Vilar 5 ineffective assistance of counsel in violation of his Sixth 6 Amendment rights. 7 Vilar now wishes to collaterally attack his conviction by 8 applying for a writ of habeas corpus from the district court 9 pursuant to 28 U.S.C. § 2255. On appeal, Vilar received new To correct this perceived deficiency, If successful, the writ would 10 vacate his conviction and require a retrial in which he 11 would have a new opportunity to develop the record. 12 Because the filing of an application for a writ of 13 habeas corpus would result in two attacks on his conviction 14 pending simultaneously, Vilar now moves this court to let 15 him withdraw his direct appeal without prejudice and with 16 leave to reinstate it after he finishes litigating his 17 habeas application before the district court. 18 The government and Tanaka both oppose Vilar s motion on 19 the ground that it would significantly delay the direct 20 appeal. 21 his appeal be severed to avoid such delay. 22 also invokes the waste of government resources and the If Vilar s motion is granted, Tanaka requests that 4 The government 1 invasion of the traditional requirement that a defendant 2 exhaust all direct appeals before launching a collateral 3 attack. 4 the motion would not prejudice Vilar because he could pursue 5 habeas relief after (or simultaneously with) his direct 6 appeal. 7 Tanaka and the government point out that denial of In the event that his motion to withdraw is denied, 8 Vilar moves in the alternative for a six-month extension to 9 file his appellate brief. Vilar argues that because his 10 appellate lawyers are new, they need that time to fully 11 review the trial record, which he characterizes as large and 12 complex. 13 but requests that the filing deadline be extended only one 14 month. 15 Vilar now has three lawyers at work, that the case is not 16 particularly complex, and that Vilar s lawyers have already 17 had over a year to prepare his appeal. Tanaka endorses Vilar s request for an extension, The government opposes any extension, arguing that 18 19 20 DISCUSSION A criminal defendant can challenge his conviction by 21 direct appeal to this Court or by collateral attack, seeking 22 a writ of habeas corpus from the federal district court 5 1 under 28 U.S.C. § 2255. 2 exhaust his direct appeals before applying for habeas 3 relief. 4 exhausted his direct appeal are generally considered 5 premature. 6 (2d Cir. 2010) (per curiam). 7 pursued simultaneously. 8 622, 632 (2d Cir. 2002) (observing there is no 9 jurisdictional bar to a district court adjudicating a § 2255 10 11 Ordinarily, a defendant must [H]abeas petitions filed before the petitioner has Wall v. United States, 619 F.3d 152, 154 & n. 2 But both measures may be United States v. Outen, 286 F.3d motion concurrently with the direct appeal). By moving to withdraw his direct appeal with leave to 12 reinstate it after his habeas application has been 13 litigated, Vilar seeks to pursue a third route: 14 collaterally attacking first and directly appealing second. 15 This initiative raises concerns both jurisdictional and 16 practical. 17 18 19 I The filing deadlines for direct appeals under Federal 20 Rule of Appellate Procedure 4 are mandatory and 21 jurisdictional. 22 States ex rel. McAllan v. City of New York, 248 F.3d 48, 51 Outen, 286 F.3d at 630; see also United 6 1 (2d Cir. 2001) (per curiam) ( The Fed. R. App. P. 4 time 2 requirements for taking an appeal have been treated as 3 especially rigid, and a federal court s authority to extend 4 or suspend those limits is narrowly limited. ). 5 Appellate Rule 4(b), a defendant must file a notice of 6 appeal within 14 days of the later of the entry of judgment 7 by the district court or the notice of appeal by the 8 government. 9 the defendant, this Court may extend this deadline up to 30 Fed. R. App. P. 4(b)(1). Under Upon a motion from 10 days, but no longer. 11 26(b) ( [T]he court may not extend the time to file...a 12 notice of appeal (except as authorized by Rule 4) or a 13 petition for permission to appeal. ). 14 of the 30-day extension period, this Court is divested of 15 jurisdiction to hear the direct appeal. 16 630. 17 jurisdiction over a direct appeal within the deadlines 18 prescribed by Rule 4, it will lack and cannot regain 19 jurisdiction to hear that appeal. 20 Fed. R. App. P.(b)(4); Fed. R. App. P. After the expiration Outen, 286 F.3d at In other words, if this Court does not take Vilar asks us to dismiss his appeal--ousting us of 21 appellate jurisdiction over it--while still retaining the 22 ability to revive our jurisdiction at some later date, 7 1 presumably much farther in the future than the 30-day 2 extension we may grant under Rule 4(b). 3 to grant such relief. 4 any extensions authorized by Rule 4(b), we can no longer 5 take appellate jurisdiction over an appeal. 6 Int l Co. v. Banco Do Brasil S.A., 215 F.3d 306, 311 (2d 7 Cir. 2000) ( [W]e do not interpret the rules of procedure as 8 allowing the court to revive a losing party s right to 9 appeal after both the original appeal period and the We lack authority After the 14-day filing deadline and Mendes Junior 10 permissible grace period have expired. ). 11 attempt to circumvent this jurisdictional limitation, even 12 if an extension would be non-prejudicial, convenient, or 13 fair. 14 expand appellate jurisdiction by asking the district court 15 to re-write history and re-issue his order from which a 16 timely appeal could then be taken. 17 life cannot be breathed into an appeal whose filing time has 18 already expired. ). 19 Nor may we See McAllan, 248 F.3d at 52 ( [A]ppellant...sought to New jurisdictional While we lack jurisdictional authority to grant Vilar 20 the relief he articulates, we may grant Vilar the effective 21 equivalent. 22 stay our adjudication of it pending the outcome of his Instead of dismissing his appeal, we may simply 8 1 § 2255 application. Because a stay never ousts us of 2 appellate jurisdiction, it avoids the jurisdictional 3 constraints of Rule 4. 4 litigants have sought the same relief Vilar seeks here. 5 In United States v. Hernandez, 5 F.3d 628 (2d Cir. We have done this in the past when 6 1993), a defendant convicted in federal district court 7 sought the dismissal of his direct appeal with leave to 8 reinstate it after the district court adjudicated his § 2255 9 habeas application. Without considering the jurisdictional 10 constraints of Rule 4, we agreed to wait to adjudicate 11 Hernandez s direct appeal until after the district court 12 considered his habeas application. 13 specify the mechanism by which we could legitimately delay 14 our consideration of Hernandez s direct appeal. In so doing, we did not The defendant in Outen likewise requested the dismissal 15 16 of his direct appeal with leave to reinstate it after 17 adjudication his § 2255 application. 18 jurisdictional constraints of Rule 4 and construed the 19 relief we granted in Hernandez as a stay rather than a 20 dismissal and reinstatement. 21 n.7. We considered the Outen, 286 F.3d at 627-632 & We ultimately granted Outen the same stay we granted 9 1 Hernandez, holding that we had jurisdiction to grant such 2 stays. Id. at 631-32. Together, Hernandez and Outen make clear that we may 3 4 construe a defendant s request for a dismissal with leave to 5 reinstate as a motion for a stay, and that we have 6 jurisdiction to grant such a discretionary stay. 7 construe Vilar s motion as a request for a stay of his 8 direct appeal pending the outcome of his habeas application. 9 Having determined that we have jurisdiction to grant such a 10 We now stay, we turn to the question of whether we should do so. 11 12 II 13 We generally prefer to adjudicate direct appeals prior 14 to, rather than after, collateral attacks. 15 attack is not a substitute for direct appeal and petitioners 16 are therefore generally required to exhaust direct appeal 17 before bringing a petition § 2255. 18 727 F.2d 34, 41 (2d Cir. 1984); see also Wall, 169 F.3d at 19 154. 20 A collateral United States v. Dukes, Vilar offers two reasons for inverting this general 21 preference: judicial economy and fairness to the defendant. 22 We find neither reason persuasive. 10 1 A 2 Vilar argues that, as a matter of efficiency, a 3 successful habeas motion would obviate the direct appeal. 4 This is true enough, but so is the converse: If Vilar s 5 direct appeal were adjudicated first and succeeded, that 6 would eliminate the need for his § 2255 application. 7 a showing that the habeas application is much more 8 promising, judicial economy would seem to favor pursuing the 9 direct appeal first. Absent Direct appeals are generally less time 10 consuming and expensive than habeas application because they 11 involve a fixed record and simpler procedures and standards 12 of review. 13 result in new trials, while successful direct appeals often 14 do not. 15 appeals to the circuit court, necessitating another round of 16 briefing and judicial consideration. 17 Moreover, successful habeas applications often And unsuccessful habeas applications often lead to Vilar has not shown that his § 2255 motion is more 18 likely to succeed than his direct appeal. 19 direct appeals, habeas proceedings impose tougher standards 20 on the defendant and require more demanding showings. 21 provides no reason to think his case is unusual in this 22 regard. 11 Compared to Vilar 1 Vilar contends that, even if he does not succeed on his 2 § 2255 motion, judicial resources will still be saved 3 because his appeal from the district court s denial of his § 4 2255 motion could be consolidated with his direct appeal. 5 While such consolidation would reduce the number of 6 appellate adjudications, few if any judicial resources would 7 be conserved. 8 different standards, different records, and separate 9 analyses. The consolidated appeals would entail And simultaneous adjudication of interrelated 10 issues using different standards and different records would 11 increase the complexity of the consolidated appeal. 12 there is little reason to believe that a consolidated appeal 13 would save significant time or energy compared to two 14 separate appeals. 15 16 Thus, We therefore conclude that interests of judicial economy disfavor staying Vilar s direct appeal. 17 18 19 B Vilar also argues it is unfair to ask him to litigate 20 his direct appeal on the current record, which he asserts 21 was insufficiently developed by constitutionally ineffective 22 trial counsel. Again, even assuming Vilar s allegation is 12 1 correct, this insufficiency would not be rectified by 2 allowing him to adjudicate his § 2255 application first: 3 Any additional fact-finding done pursuant to a habeas 4 proceeding would not be part of the record on which we would 5 adjudicate his direct appeal. 6 Vilar were to succeed on his § 2255 application, there would 7 be no immediate direct appeal at all. 8 motion will not affect the record on which we will decide 9 his direct appeal. And, as discussed above, if Win or lose, Vilar s And even if Vilar were required to 10 litigate his direct appeal on an underdeveloped record, he 11 would not be prejudiced by this fact because he could still 12 pursue his collateral attack. 13 Staying adjudication of Vilar s direct appeal would 14 impose delay on his co-defendant, Tanaka, and the 15 government. 16 anything to delay this appeal, and it would be unfair to 17 them to hold it in abeyance indefinitely while Vilar pursues 18 alternative means of attacking his conviction. 19 eliminate any unfairness to Tanaka by severing his appeal 20 from Vilar s, but this would be highly inefficient and would 21 be unfair to the government, which would then have to 22 litigate separately two almost identical appeals. Neither Tanaka nor the government has done 13 We could 1 2 Fairness, like judicial economy, favors denying Vilar s motion to stay his direct appeal. 3 4 5 III In the alternative, Vilar seeks a six-month extension 6 to file his appellate brief, so his new appellate counsel 7 can fully digest the record and prepare a zealous defense. 8 Tanaka endorses this extension, but requests that it be 9 limited to one month. 10 We conclude that delaying the direct appeal by six 11 months will not seriously prejudice the government or 12 Tanaka. 13 extension to file his appellate brief. We therefore grant Vilar s request for a six month 14 15 16 CONCLUSION Vilar s motion to withdraw his direct appeal is DENIED. 17 Vilar s motion for a six-month extension to file his 18 appellate brief is GRANTED. 19 due six months from the issuance of this opinion. Vilar s appellate brief is now 14

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