Pappas v. United States , 362 F. App'x 175 ( 2010 )

07-0481-pr(L)
Pappas v. USA
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document
filed with this court, a party must cite either the Federal Appendix or an electronic database
(with the notation “summary order”). A party citing a summary order must serve a copy of it
on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the twenty-fifth day of January two thousand and ten.
PRESENT:
JOSÉ A. CABRANES,
ROSEMARY S. POOLER,
GERARD E. LYNCH ,
Circuit Judges.
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MARKOS PAPPAS,
Petitioner-Appellant,
GORDON LAURIA ,
Petitioner -Appellant-Cross-Appellee,
v. Nos. 07-0481-pr(L), 07-
0513(C), 07-0514(XAP)
UNITED STATES OF AMERICA
Appellee-Cross-Appellant.*
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FOR PETITIONERS-APPELLANTS: John T. Walkley, Law Offices of John T.
Walkley, Monroe CT, for Gordon Lauria.
Markos Pappas, pro se, Pollock, LA, for Markos
Pappas.
*
The Clerk of Court is directed to amend the official caption to conform to the listing of the parties stated
above.
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FOR APPELLEES-CROSS-APPELLANTS: David T. Huang, Assistant United States
Attorney (Nora R. Dannehy, Acting United
States Attorney, and William J. Nardini,
Assistant United States Attorney, on the brief),
District of Connecticut, Hartford, CT.
Appeal from an order of the United States District Court for the District of Connecticut
(Peter C. Dorsey, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court is AFFIRMED except to
the extent that it was rendered moot by the District Court’s April 5, 2007 order.
Petitioners-appellants Markos Pappas (“Pappas”) and Gordon Lauria (“Lauria”)1 appeal
from an order of the District Court entered on December 13, 2006, in which the District Court:
(1) denied Pappas’s 28 U.S.C. § 2255 motion in its entirety; (2) denied Lauria’s § 2255 motion as to
all but one claim; and (3) granted Lauria’s § 2255 motion insofar as he claimed that he had been
denied the effective assistance of appellate counsel due to counsel’s failure to argue that the 420-
month term of imprisonment of Lauria’s sentence violated Apprendi v. New Jersey, 530 U.S. 466(2000). The government cross-appealed from the December 13, 2006 order. On April 5, 2007, after
all parties had filed notices of appeal, the District Court granted the government’s motion for
reconsideration of its December 13, 2006 order insofar as it granted relief on one of Lauria’s claims.
We assume the parties’ familiarity with the remaining factual and procedural issues.
In reviewing a district court’s denial of relief under § 2255, we review findings of fact for
clear error and conclusions of law de novo. See Ventry v. United States, 539 F.3d 102, 110 (2d Cir.
2008).
As an initial matter, the government’s cross-appeal is dismissed as moot. The government’s
appeal is from the portion of the December 13, 2006 order granting Lauria § 2255 relief concerning
his sentencing claim. After the government filed its notice of appeal, however, the District Court
amended the December 13, 2006 order to let Lauria’s original sentence of 420 months stand,
thereby mooting the government’s appeal.
Additionally, to the extent that Lauria challenges the District Court’s April 5, 2007 order, the
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Lauria’s appeal in 07-0513-pr was dismissed for failure to pay the docketing fee or move for in forma pauperis
(“IFP”) status, and a mandate issued thereafter. See 07-0513-pr, entry at July 25, 2008. Notwithstanding that order,
counsel for Lauria continued to file documents, often with leave of this Court, in Pappas’s consolidated appeal, No. 07-
0481-pr. Accordingly, we will construe the District Court’s April 5, 2007 order granting Lauria a certificate of
appealability to include a grant of IFP status and we recall the mandate and reinstate the appeal. See Fed. R. App. P. 2.
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appeal is dismissed for lack of appellate jurisdiction. Where a party files a motion for
reconsideration after the entry of an appealable final order, as all parties did here, any party that
seeks to appeal the disposition of the reconsideration motion, or a final order altered or amended
upon such a motion, must file a notice of appeal after the entry of the new order. See Fed. R. App.
P. 4(a)(4)(B)(ii) (“A party intending to challenge an order disposing of any motion listed in Rule
4(a)(4)(A), or a judgment’s alteration or amendment upon such a motion, must file a notice of
appeal, or an amended notice of appeal . . . within the time prescribed by this Rule measured from
the entry of the order disposing of the last such remaining motion.”); Sorensen v. City of New York, 413
F.3d 292, 296 (2d Cir. 2005) (“If the judgment is altered upon disposition of a posttrial motion . . .
and if a party wishes to appeal from the disposition of the motion, the party must amend the notice to so
indicate.” (quoting Fed. R. App. P. 4(a)(4) 1993 Advisory Committee Notes)). Here, Lauria did not
file a notice of appeal from the April 5, 2007 order, nor did he seek to amend his previously-filed
notice of appeal, which addressed only the District Court’s December 13, 2006 order. Accordingly,
we lack appellate jurisdiction to consider Lauria’s arguments challenging the April 5, 2007 order.
With respect to Pappas’s claims and the remainder of Lauria’s claims, we affirm the order of
the District Court, entered December 13, 2006, substantially for the reasons stated in the District
Court’s thorough and careful ruling of that date. Lauria v. United States, Nos. 96cr185, 01cv1893,
01cv1894, 2006 WL 3704282 (D. Conn. Dec. 13, 2006).
CONCLUSION
We have considered all of petitioners’ arguments and find them to be without merit.
Petitioner Lauria’s appeal is dismissed for lack of appellate jurisdiction insofar as it relates to the
District Court’s April 5, 2007 order. With respect to the remaining claims of both petitioners, the
December 13, 2006 order of the District Court is AFFIRMED except to the extent that it was
rendered moot by the District Court’s April 5, 2007 order.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
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