United States v. Price, Terraun ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3780
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRAUN PRICE, also known
as BOO ROCK,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 01 CR 98—James T. Moody, Judge.
____________
ON MOTION FOR APPOINTMENT OF COUNSEL
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JULY 3, 2007Œ
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RIPPLE, Circuit Judge (in chambers). Terraun Price has
filed a motion for the appointment of counsel to assist him
in filing a petition for certiorari in the Supreme Court of
the United States, seeking further review of the judgment
of this court. See United States v. Price, 418 F.3d 771 (7th Cir.
Œ
This chambers opinion was released initially in typescript form.
2 No. 03-3780
2005), and United States v. Price, 155 F. App’x 899 (7th Cir.
2005). For the reasons set forth in this chambers opinion,
the mandate of this court is recalled and new counsel is
appointed to assist Mr. Price in filing a petition for certio-
rari in the Supreme Court of the United States.
A.
A jury found Terraun Price guilty of conspiring to
distribute 50 grams or more of cocaine base and of using
a telephone to facilitate the commission of a felony. Price,
418 F.3d at 775. The district court sentenced him to life
imprisonment. We affirmed Mr. Price’s conviction, but
ordered a limited remand pursuant to United States v.
Paladino, 401 F.3d 471, 480-81 (7th Cir. 2005). After the
district court indicated that it would have imposed the
same sentence had it known that the Guidelines were
merely advisory, we affirmed Mr. Price’s sentence. Price,
155 F. App’x at 900.
Mr. Price subsequently filed a motion seeking relief
from his criminal judgment pursuant to 28 U.S.C. § 2255in the Northern District of Indiana, Hammond Division. In
that motion, Mr. Price raised the claim that his appellate
counsel was ineffective when he failed to file a petition for
a writ of certiorari asking the Supreme Court to review
our affirmance of his conviction. The district court
stayed further consideration of the § 2255 motion to allow
Mr. Price to ask this court to recall its mandate in the di-
rect criminal appeal and to appoint counsel to file a
petition for a writ of certiorari. Mr. Price then filed his
motion in this court, and I directed that his appointed
appellate counsel respond.
No. 03-3780 3
Although Mr. Price does not have a constitutional right
to counsel while seeking certiorari, Ross v. Mofitt, 417 U.S.
600, 617 (1974), he does have a statutory right based on the
Criminal Justice Act, 18 U.S.C. § 3006A. Wilkins v. United
States, 441 U.S. 468, 469 (1979) (per curiam). See also United
States v. Howell, 37 F.3d 1207, 1209 (7th Cir. 1994) (Ripple,
J., in chambers). Indeed, the Seventh Circuit Criminal
Justice Act Plan requires an appointed attorney to prepare
and to file a petition for a writ of certiorari if, after con-
sultation, the represented person requests it and there
are reasonable grounds for counsel properly to do so. See
Seventh Circuit Plan, V.3. If counsel concludes that rea-
sonable grounds do not exist, counsel must promptly
inform the defendant, and the defendant may request this
court to order counsel to seek certiorari. Id.In Wilkins, the Supreme Court examined the proper
remedy for a defendant whose court-appointed attorney
had failed to file a timely petition for writ of certiorari
despite a defendant’s written request. The Court concluded
that such a defendant can file a motion for appointment
of counsel in the court of appeals and that the court, in
response, “could have vacated its judgment affirming
the convictions and entered a new one, so that this peti-
tioner, with the assistance of counsel, could file a timely
petition for certiorari.” Wilkins, 441 U.S. at 469. In Howell,
I recalled a mandate and appointed new counsel to deter-
mine whether to file a petition for rehearing or a petition
for a writ of certiorari. 37 F.3d at 1210.
B.
The record before me raises a very serious question as
to whether Mr. Price was afforded his statutory right to
4 No. 03-3780
the assistance of counsel. In a letter dated December 7,
2005, his appointed appellate counsel, commenting on our
final order following the district court’s reply to the
Paladino remand, wrote that “[t]he next step would be to
file a writ of certiorari to the United States Supreme Court,
your last bastion of hope for reversal of the Trial Courts
(sic) sentence. We will begin the process and let you know
the outcome as soon as possible.” See Motion for Appoint-
ment of Counsel, Att. 2 at 2. In a later letter, dated May 31,
2006, the same attorney, responding to an inquiry of
Mr. Price, wrote: “[P]lease be advised that we did not
file the Writ of Certiorari because we did not feel it prudent
to do so.” Id., Att. 3 at 1.
In responding to the present motion to appoint coun-
sel, counsel represents that he reviewed the relevant facts
and case law and determined that it would be not appro-
priate to file a petition for a writ of certiorari. He also
claims that he so advised Mr. Price by letter dated May 15,
2006. It appears that counsel is referencing his letter of
May 31, 2006. Counsel also explains that his failure to
follow up with Mr. Price regarding counsel’s conclusion
that no reasonable grounds existed for filing a certiorari
petition was due, in large part, to his preparation for trial
in a death penalty case that lasted the entire month of
May 2006. Finally, counsel requests leave to withdraw as
counsel and asks the court to appoint new counsel to file
a petition for a writ of certiorari on Mr. Price’s behalf. The
record is silent as to whether counsel has advised Mr. Price
about our first opinion, prior to the Paladino remand, in
which we affirmed his conviction. There is, however, a
suggestion that no such communication took place. In his
letter of December 7, 2005 counsel transmitted our final
non-precedential order and noted that the order “sum-
marizes the 7th Circuit’s review of your case.”
No. 03-3780 5
Based on Mr. Price’s motion and counsel’s response,
I must conclude that appellate counsel did not comply
with his obligations under the Seventh Circuit Criminal
Justice Act Plan. Counsel’s first letter, fairly read, advised
Mr. Price that counsel was preparing to file a petition for
certiorari: “We will begin the process and let you know the
outcome as soon as possible.” Mr. Price was not informed
that counsel had not filed a petition until he made his later
inquiry. Mr. Price, therefore, was unable to ask this court to
order counsel to seek certiorari.
As I noted in Howell, the duty of appointed counsel to
file a petition for certiorari is tempered by the duty to
refrain from filing “frivolous” pleadings. Howell, 37 F.3d
at 1209. Whether a document can be characterized as
legally “frivolous” is a determination that must take into
account the nature of the document and the circumstances
of the particular case. The Supreme Court has said explic-
itly that “[r]eview on a writ of certiorari is not a matter of
right but of judicial discretion” and that it will be granted
“only for compelling reasons.” Rule 10, Rules of the
Supreme Court of the United States.
At this point, when there has been no meaningful
consultation between counsel and the defendant, it
would be premature for me to say whether a petition
would be warranted. At the very least, Mr. Price has the
right to consult with counsel about the appropriateness
of filing a petition for a writ of certiorari. Accordingly,
the mandate of this court is recalled. New counsel will
be appointed. Counsel may file, within 14 days of appoint-
ment, a petition for rehearing in this court. Alternatively,
counsel may elect to file immediately a petition for certio-
rari in the Supreme Court. If counsel, after consultation
with Mr. Price, determines that it would be inappropriate
6 No. 03-3780
to file a petition for certiorari, he must communicate that
appraisal to Mr. Price so that he can ask, if he chooses, this
court to determine whether it should order that such a
petition be filed.
MANDATE RECALLED; COUNSEL APPOINTED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-13-07