Filed: Mar. 29, 2012
Latest Update: Mar. 29, 2012
Summary: ORDER G.R. SMITH, Magistrate Judge. While Gerald Bernard Datts was represented by retained counsel Nicholas Pagano, CR410-091, does 43 & 49, 1 the Clerk filed for him a Notice of Appeal from his 18 U.S.C. 922(g)(1) conviction, does 71-73, but Datts never perfected the appeal (paid the filing fee, etc.). Consequently, it was dismissed. Does 74-77. Pagano, bound by the Eleventh Circuit's "in for a dime, in for a dollar" policy, 2 never made any post-judgment filings until Datts complained a
Summary: ORDER G.R. SMITH, Magistrate Judge. While Gerald Bernard Datts was represented by retained counsel Nicholas Pagano, CR410-091, does 43 & 49, 1 the Clerk filed for him a Notice of Appeal from his 18 U.S.C. 922(g)(1) conviction, does 71-73, but Datts never perfected the appeal (paid the filing fee, etc.). Consequently, it was dismissed. Does 74-77. Pagano, bound by the Eleventh Circuit's "in for a dime, in for a dollar" policy, 2 never made any post-judgment filings until Datts complained ab..
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ORDER
G.R. SMITH, Magistrate Judge.
While Gerald Bernard Datts was represented by retained counsel Nicholas Pagano, CR410-091, does 43 & 49,1 the Clerk filed for him a Notice of Appeal from his 18 U.S.C. § 922(g)(1) conviction, does 71-73, but Datts never perfected the appeal (paid the filing fee, etc.). Consequently, it was dismissed. Does 74-77. Pagano, bound by the Eleventh Circuit's "in for a dime, in for a dollar" policy,2 never made any post-judgment filings until Datts complained about his lost appeal; then he moved to withdraw from representing Datts. Does 78-80.
Meanwhile, Datts filed a series of letters3 and motions in quest of an appeal. Does 78-79, 81-85. Those filings amounted to a 28 U.S.C. § 2255 motion4 to pursue his lost appeal — by alleging that Pagano provided him with ineffective assistance of counsel. So construing his filings required this court to issue a "Castro warning," see Castro, 540 U.S. at 383, advising Datts that it would recharacterize his filings (does 78-79) 81-86) as a § 2255 motion, and affording him the opportunity to have his motion ruled upon as filed, amend it to include other claims, or withdraw it entirely. Doe. 87.
In response, he filed a formal § 2255 motion. Doe. 90; see also doe. 91 ("Appendix"). There he alleges that he had wanted to appeal with appointed counsel but
this request was denied. My appeal was denied because [of] my failure to do procedures that I was not aware of until receiving notice via mail that my appeal had been denied for those reasons. My retained counsel was for trial purposes only, and this was made known to the Courts,5 which is the reason why I asked to be appointed a new attorney to assist me at that point and beyond. Correspondences from the Courts was sent to the court-appointed attorney who no longer was assisting me, and these correspondences in good faith, was not forwarded to me in a timely fashion, therefore leaving me totally uninformed to what was going on so that I could preserve my right to appeal. Had I adequately been aware, I could have under the capacity as a pro se litigant, proceeded properly with what little knowledge that I possessed, in reference to any instructions from the Court that may have been given.
Doc. 91 at 5-6 (footnote added).
Previously, the Court deferred on Pagano's motion to withdraw (doc. 80) until after Datts exercised his § 2255 options. In that Datts' filing reveals a conflict of interest between attorney and client (it was Pagano's duty to inquire about his client's interest in exercising his direct appeal rights),6 the Court GRANTS Pagano's motion. Doe. 80. The government shall respond to Datts' § 2255 motion within 30 days.
SO ORDERED.
