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
JULY 3, 2007*
*
This chambers opinion is being released initially in
typescript form.
No. 03-3780 Page 2
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. 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
certiorari 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. § 2255 in 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 direct 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 Page 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
consultation, 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 reasonable 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 petitioner, 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 determine 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 the assistance
of counsel. In a letter dated December 7, 2005, his appointed
appellate counsel, commenting on our final order following the
No. 03-3780 Page 4
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 Appointment 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 counsel,
counsel represents that he reviewed the relevant facts and case law
and determined that it would be not appropriate 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 out 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 “summarizes the 7th Circuit’s review of your case.”
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
No. 03-3780 Page 5
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 explicitly 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 appointment, a
petition for rehearing in this court. Alternatively, counsel may elect
to file immediately a petition for certiorari in the Supreme Court. If
counsel, after consultation with Mr. Price, determines that it would
be inappropriate 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