UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50069
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEE ANN WEST,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
January 26, 2001
Before BARKSDALE and BENAVIDES, Circuit Judges, and VELA,1 District
Judge.
RHESA HAWKINS BARKSDALE, Circuit Judge:
For this out-of-time direct criminal appeal granted Dee Ann
West, pursuant to her § 2255 motion, primarily at issue is whether
her notice of appeal is premature because, after granting the
appeal, the district court did not re-enter the underlying judgment
for her conviction and sentence. If it is premature, we have no
jurisdiction concerning the two issues for which the appeal was
granted: whether West was denied due process of law and effective
1
District Judge of the Southern District of Texas, sitting by
designation.
assistance of counsel by the district court’s denial of additional
funding for experts (expert-funding); and whether the district
court erred in denying her motion for a continuance.
In this appeal, West raises not only those two issues, but
also one other presented in her § 2255 motion: whether the
district court erred in denying severance. But, because the grant
of the out-of-time appeal did not extend to the severance issue,
and because West did not appeal the denial of § 2255 relief on that
point, the severance issue has been waived. And, because West’s
notice of appeal is premature, our deciding the two issues
permitted for the out-of-time appeal (expert-funding and
continuance) is held in abeyance, pending re-entry of her
underlying criminal judgment. We DISMISS in PART; VACATE in PART;
and REMAND in PART.
I.
In December 1995, West and co-defendant O’Callaghan were
convicted for several drug-trafficking offenses. The judgment for
the conviction and sentence (the criminal judgment) was entered 26
February 1996. Separate counsel represented West and O’Callaghan
at trial and on appeal. Their criminal judgments were affirmed on
direct appeal. United States v. O’Callaghan, 106 F.3d 1221, 1223
(5th Cir. 1997) (sufficient evidence to sustain conviction and no
error in sentencing West).
2
Pursuant to 28 U.S.C. § 2255, West moved to vacate, set aside,
or correct her criminal judgment, asserting, inter alia, that, on
appeal, she received ineffective assistance of counsel. West
maintained appellate counsel was ineffective in failing to raise
the district court’s denials of expert-funding, a continuance, and
a severance. Along this line, and concerning her trial, she
asserted: she was denied due process because the district court
effectively denied her an expert and a continuance; she was denied
effective assistance of counsel and due process because counsel
failed to timely move for a severance; and she was denied Fifth
Amendment due process by her joint trial with O’Callaghan.2
Although West’s counsel filed an appellate brief, it was
merely a copy of that filed for O’Callaghan. The district court
found West’s appellate counsel ineffective for failing to perfect
her appeal on the expert-funding and continuance issues. As a
result, it granted West an out-of-time appeal specifically limited
to those two grounds. In this regard, the district court stated:
“Because [it found] that appellate counsel’s performance on appeal
of [West’s] case denied [West] the right to effective assistance of
2
West’s trial counsel did not move for a severance; but she
apparently challenges appellate counsel’s failure to object to the
trial court’s denial of O’Callaghan’s motion for severance.
O’Callaghan’s counsel had declared O’Callaghan would face spillover
prejudice from the admission of a gun as evidence against West.
O’Callaghan raised the severance issue on direct appeal; our court
found no abuse of discretion. O’Callaghan, 106 F.3d at 1223.
3
counsel, [it did] not reach West’s remaining claims for [§ 2255]
relief”. (Emphasis added.)
Accordingly, the district court granted in part the relief
sought by West’s § 2255 motion: leave to file an out-of-time
appeal was limited to the expert-funding and continuance issues,
and did not include the severance issue; and West’s request to
vacate her conviction and sentence was denied. (The order stated
that the § 2255 motion was “granted”; but, as discussed infra, the
relief was not that provided for under 28 U.S.C. § 2255, which
includes vacating the criminal judgment.)
The corresponding judgment for the § 2255 motion was entered
9 December 1999. But, the district court did not re-enter West’s
underlying criminal judgment on the criminal docket.
Six weeks later, on 20 January 2000, West filed a notice of
appeal only from “the judgment of conviction entered December 22,
1995, and the sentence entered February 26, 1996”. (Emphasis
added.) (In fact, the verdict was returned 22 December 1995; the
criminal judgment was entered 26 February 1996.) West did not also
appeal from the § 2255 judgment itself, particularly the severance
issue’s not being included in the out-of-time appeal granted her.
II.
A.
West’s notice of appeal was filed 42 days after the § 2255
civil judgment. A timely notice of appeal is, of course, a
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precondition to the exercise of appellate jurisdiction. E.g.,
United States v. Merrifield, 764 F.2d 436, 437 (5th Cir. 1985). It
goes without saying that, if necessary, we must examine sua sponte
the basis of our jurisdiction. E.g., United States v. Lister, 53
F.3d 66, 68 (5th Cir. 1995).
Confusion apparently has existed as to: whether the
underlying criminal judgment must be reinstated on the criminal
docket following the grant of an out-of-time direct criminal
appeal, or whether such reinstatement is de facto; and whether the
time for appeal is 10 days under Federal Rule of Appellate
Procedure 4(b)(1)(A) (granting 10 days to file notice of appeal in
criminal case) or 60 days under Federal Rule of Appellate Procedure
4(a)(1)(B) (granting 60 days to file notice of appeal in civil case
in which United States is party). As discussed infra, for an out-
of-time direct criminal appeal granted pursuant to a § 2255
judgment: the underlying criminal judgment must be reinstated on
the criminal docket; and the time for appeal is 10 days.
The time for appeal commences to run the day “the judgment or
order appealed from is entered”. FED. R. APP. P. 4(a)(1)(B)
(emphasis added); FED. R. APP. P. 4(b)(1)(A) (emphasis added). The
judgment granting an out-of-time direct criminal appeal is simply
the mechanism by which a defendant is able to appeal directly from
her earlier, underlying criminal judgment. Accordingly, for her
out-of-time appeal, West is not appealing the civil judgment
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entered 9 December 1999 on her § 2255 motion, but rather the
earlier, underlying criminal judgment, entered 26 February 1996.
(Again, because of the limited nature of her notice of appeal, West
appealed only the underlying criminal judgment; she did not also
appeal the § 2255 civil judgment, even though some of the relief
requested in her § 2255 motion was denied by that judgment.)
Therefore, the 10-day period under Rule 4(b)(1)(A) (appeal in
criminal case) applies.
Of course, a district court does not have the authority to
create appellate jurisdiction simply by ordering an out-of-time
direct criminal appeal. Compliance with the Federal Rules of
Appellate Procedure is imperative. Rule 4(b)(1)(A) provides: “In
a criminal case, a defendant’s notice of appeal must be filed in
the district court within 10 days after ... the entry of either the
judgment or the order being appealed....” FED. R. APP. P. 4(b)(1)(A)
(emphasis added). “A judgment or order is entered for purposes of
this Rule 4(b) when it is entered on the criminal docket.” FED. R.
APP. P. 4(b)(6).
Because the district court did not re-enter the criminal
judgment after it granted the out-of-time appeal, West’s 20 January
2000 notice of appeal is both late and premature: obviously, it is
untimely as measured from the 26 February 1996 criminal judgment;
at the same time, it is premature, because the time to appeal,
6
pursuant to the grant of the out-of-time appeal, has not commenced
to run.
Our court’s opinion in Mack v. Smith, 659 F.2d 23, 25-26 (5th
Cir. Unit A 1981), provides that, when leave to file an out-of-time
appeal is granted, the district court should reinstate the criminal
judgment to trigger the running of a new Rule 4(b) appeal period.
In Mack, our court held appellant Mack was entitled to a hearing on
whether, pursuant to his § 2255 motion, he had been denied a direct
appeal because he had received ineffective assistance of counsel.
Id. at 25. Our court vacated the order denying the § 2255 motion
and remanded for a determination whether Mack should be permitted
the out-of-time appeal. Id. It instructed the district court:
If Mack proves his [§ 2255] claims to the
satisfaction of the district court, the § 2255
petition is to be dismissed without prejudice.
Mack’s judgment of conviction is then to be
reinstated on the docket of the trial court as
of the date to be fixed by the trial court
from which the time of the appeal shall run.
Id. at 25-26 (emphasis added).
The Government contends that the instructions given the
district court in Mack were simply dicta; West merely finds the
opinion “instructive”. However, we consider the instructions
binding precedent. E.g., Burlington N. R.R. Co. v. Bhd. of Maint.
of Way Employees, 961 F.2d 86, 89 (5th Cir. 1992)(“one panel may
not overrule the decision, right or wrong, of a prior panel in the
7
absence of en banc reconsideration or superseding decision of the
Supreme Court” (internal quotation marks and citation omitted)),
cert. denied, 506 U.S. 1071 (1993). We emphasize that, even
though the procedural posture of Mack differed from the case at
hand, the judgment-reinstatement procedure set out in Mack applies
in our circuit to all out-of-time direct criminal appeals. We are
not creating a new rule, but rather clarifying an old one.
Since the 1960s, our court, pursuant to a § 2255 motion, has
permitted an out-of-time appeal when a defendant was denied
assistance of counsel on appeal, through counsel’s failure to
perfect an appeal. See, e.g., Barrientos v. United States, 668
F.2d 838, 842 (5th Cir. 1982) (“[F]ailure of counsel to timely file
an appeal upon request of the defendant ... would constitute
ineffective assistance of counsel entitling the defendant to post-
conviction relief in the form of an out-of-time appeal.”); Arrastia
v. United States, 455 F.2d 736, 740 (1972) (same); Camp v. United
States, 352 F.2d 800, 801 (5th Cir. 1965) (“appellant will be
entitled to his out of time appeal if, and only if, he is able to
show that his employed counsel failed through fraud or deceit to
appeal”). As early as 1969, our court articulated words echoed 12
years later in Mack: “The case is remanded to the trial court,
there to be reinstated on the docket as of the date to be fixed by
the trial court from which the time of appeal shall commence to
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run.” Atilus v. United States, 406 F.2d 694, 698 (5th Cir. 1969)
(emphasis added).
We point out the distinction between the statutory remedy in
§ 2255 and the judicial remedy available in this circuit. Section
2255 provides in part:
If the court finds ... a denial or
infringement of the constitutional rights of
the prisoner as to render the judgment
vulnerable to collateral attack, the court
shall vacate and set the judgment aside and
shall discharge the prisoner or resentence him
or grant a new trial or correct the sentence
as it may appear appropriate.
28 U.S.C. § 2255 (emphasis added). In other words, granting § 2255
relief entails vacating and setting aside the judgment and then
choosing one of the proposed remedies. Under the judicial remedy
crafted in our circuit’s precedent, the same result can be reached
by granting an out-of-time appeal and re-entering the criminal
judgment as by vacating the judgment and resentencing; by both, a
new judgment is entered on the docket from which the defendant can
appeal. However, in choosing the judicial remedy, the court must
deny the statutory remedy, for it is inconsistent to “grant” § 2255
relief in name, yet deny it in substance by refusing to apply a
remedy it provides, as did the district court.
Along this line, this may be why, because it was applying a
judicial — instead of the statutory — remedy, Mack also directed
that the § 2255 motion be dismissed without prejudice if, on
remand, Mack was granted relief and the criminal judgment therefore
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reinstated. Notwithstanding its instructions about dismissing the
§ 2255 motion, it rejected the Government’s contention “that § 2255
cannot be used to grant an out-of-time appeal”. 659 F.2d at 26 n.3
(emphasis added). Barrientos is the only post-Mack published
decision which discusses granting an out-of-time direct criminal
appeal pursuant to a § 2255 motion. 668 F.2d at 842-43. However,
the denial of such relief was affirmed in Barrientos, and Mack was
only cited, not discussed. Barrientos does not mention a § 2255
motion’s being dismissed without prejudice if such an appeal is
granted.
Barrientos was rendered almost 20 years ago. In the interim,
our court has granted out-of-time direct criminal appeals pursuant
to § 2255 motions. We note, for example, that in United States v.
Perez-Rodriguez, No. 00-50004 (5th Cir. 2 Feb. 2000) (unpublished),
the district court had granted an out-of-time direct criminal
appeal pursuant to § 2255, but, as in this case, had not re-entered
the underlying criminal judgment; our court remanded for such re-
entry, but did not direct that the § 2255 motion be dismissed
without prejudice. As discussed supra, granting an out-of-time
appeal is not one of the options presented in § 2255 (although so
doing is not prohibited by § 2255). Therefore we clarify that, to
maintain uniformity with Mack and with the statutory language, part
of the procedure for granting an out-of-time direct criminal appeal
is dismissing the § 2255 motion without prejudice, or, as in this
10
instance, so dismissing those parts of the motion for which the
out-of-time appeal is granted.3
3
Several circuits follow the statutory procedure set out in §
2255, although others, like our circuit, utilize alternative
judicial remedies that achieve the same result. See State of
Wisconsin v. Knight, 168 Wis. 2d 509, 515-19, 484 N.W.2d 540, 542-
44 (1992) (contrasting approaches of circuits). Although most of
the opinions consider failure to perfect an appeal or failure to
prosecute and therefore are not factually or procedurally on all
fours with the case at hand, they all deal with § 2255 relief for
ineffective assistance of appellate counsel.
Several circuits follow the remedy set out in § 2255,
ultimately reaching the same outcome as our court’s judicial remedy
of reinstatement of the criminal judgment. See, e.g., United
States v. Phillips, 225 F.3d 1198, 1200-01 (11th Cir. 2000)
(dismissing appeal as untimely because district court failed to
follow procedure of granting motion, vacating criminal judgment,
and imposing same sentence); United States v. Peak, 992 F.2d 39,
40, 42 (4th Cir. 1993) (remanding with instructions to vacate
criminal judgment and enter new judgment from which defendant could
take direct appeal); Page v. United States, 884 F.2d 300, 302 (7th
Cir. 1989) (“Ineffective assistance may justify vacating and
reentering the judgment of conviction, allowing a fresh appeal.”);
Hollis v. United States, 687 F.2d 257, 259 (8th Cir. 1982) (court’s
procedure is to vacate sentence and to remand case to trial court
for resentencing); Rosinski v. United States, 459 F.2d 59, 59 (6th
Cir. 1972) (remanding with instructions to grant motion, vacate
sentence, and resentence on original conviction). As the Eleventh
Circuit recently explained:
When the district courts of this circuit
conclude that an out-of-time appeal in a
criminal case is warranted as the remedy in a
§ 2255 proceeding, they should effect that
remedy in the following way: (1) the criminal
judgment from which the out-of-time appeal is
to be permitted should be vacated; (2) the
same sentence should then be reimposed; (3)
upon reimposition of that sentence, the
defendant should be advised of all the rights
associated with an appeal from any criminal
sentence; and (4) the defendant should also be
advised that the time for filing a notice of
appeal from the re-imposed sentence is ten
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days, which is dictated by Rule 4(b)(1)(A)(i).
Phillips, 225 F.3d at 1201.
In contrast, once the district court has denied § 2255 relief,
the Second Circuit, instead of remanding to the district court,
recalls its own mandate dismissing the prior direct appeal:
In these circumstances [in which counsel filed
timely notice of appeal but failed to perfect
the appeal], we need not remand for sentencing
or even for entry of a new judgment, the
remedies other courts have used to redress the
failure of appellate counsel to file a timely
notice of appeal.... Instead, we have
jurisdiction to recall our mandate dismissing
McHale’s direct appeal for failure to
prosecute and to reinstate that appeal.
McHale v. United States, 175 F.3d 115, 119-20 (2d Cir. 1999)
(citations and footnote omitted).
Other appellate courts have found that, once an appellate
court has rejected a direct appeal, the criminal defendant’s
exclusive remedy is to request the court of appeals recall its
mandate on the ground of counsel’s inadequacy. The Tenth Circuit
concluded:
28 U.S.C. § 2255 is not the proper vehicle for
the reinstatement of an appeal which has been
dismissed by this court for failure to
prosecute. We agree with the position of the
Ninth Circuit that, “if an appeal is
improvidently dismissed in this court, the
remedy is by way of a motion directed to this
court asking for a recall of the mandate or
certified judgment so that this court may
determine whether the appeal should be
reinstated.”
United States v. Winterhalder, 724 F.2d 109, 111 (10th Cir. 1983)
(emphasis added) (citing Williams v. United States, 307 F.2d 366,
368 (9th Cir. 1962), overruled on other grounds, Kaufman v. United
States, 394 U.S. 217 (1969))); but see United States v. Pearce, 992
F.2d 1021, 1023 (9th Cir. 1993) (adopting approach of Seventh
Circuit in case in which appeal had not been dismissed by appellate
12
As discussed, an out-of-time direct criminal appeal, if
granted pursuant to a § 2255 motion, starts the time for appeal to
run anew as of the date the underlying criminal judgment is
reinstated/re-entered. See Barrientos, 668 F.2d at 842; Mack, 659
F.2d at 25-26. As also discussed, because the district court did
not re-enter West’s criminal judgment after it granted her an out-
of-time appeal, her notice of appeal is both late and premature.
“A notice of appeal filed after the court announces a
decision, sentence, or order — but before the entry of the judgment
or order — is treated as filed on the date of and after the entry.”
FED. R. APP. P. 4(b)(2) (emphasis added). West’s notice of appeal,
filed 20 January 2000, was filed after the 9 December 1999 § 2255
civil judgment, but the district court still has not re-entered the
criminal judgment on its criminal docket to allow the time for
appeal to run anew. Following the guidance of Rule 4(b)(2), we
hold West’s appeal in abeyance and remand the case to the district
court for re-entry of her criminal judgment, as outlined in part
III. Upon such re-entry, as of which date her earlier notice of
appeal is considered filed, this case is to be returned for
consideration of the two issues for which the out-of-time appeal
was granted.
court (citing Page)); Page, 884 F.2d at 302 (rejecting approach of
Ninth and Tenth Circuits because § 2255 specifically authorizes
collateral attack in court that imposed sentence as long as issue
not previously presented on appeal).
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B.
One of the issues West raises on appeal is the denial of a
severance; but, the grant of an out-of-time appeal expressly
excluded all issues except the denial of additional expert-funding
and a continuance. Therefore, the severance issue was not
permitted for West’s out-of-time appeal.
In addition, West’s notice of appeal did not designate the §
2255 judgment denying this aspect of West’s § 2255 motion. See
FED. R. APP. P. 3(c)(1)(B) (notice of appeal “must ... designate the
judgment ... being appealed” (emphasis added)). Accordingly, we
cannot reach whether the district court’s limitation of the out-of-
time appeal was appropriate. Moreover, because the 60 days for
appealing the 9 December 1999 § 2255 civil judgment have expired,
see FED. R. APP. P. 4(a)(1)(B), West cannot raise the severance
issue upon remand. She waived the claim by failure to timely
appeal. In short, our mandate affirming the criminal judgment
still remains in effect regarding all issues on which the district
court did not find ineffective assistance of counsel.
III.
The requested § 2255 relief was granted in part and denied in
part by the district court. We have no jurisdiction over the
portion denied (including the severance issue), because West failed
to appeal that denial. Therefore, West’s appeal as to the
severance issue is DISMISSED.
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However, regarding the relief granted in the form of an out-
of-time appeal for the expert-funding and continuance issues, we
VACATE that part of the judgment of the district court, and REMAND
with instructions to dismiss without prejudice that part of the §
2255 motion for which the out-of-time appeal was granted, to grant
an out-of-time appeal, and to reinstate the criminal judgment on
the docket.
Accordingly, this premature appeal is held in abeyance pending
reinstatement of the criminal judgment by the district court.
Thereafter, the district court shall return this matter to this
court for further proceedings.
DISMISSED in PART; VACATED in PART; and REMANDED in PART
15