Appellate Review: Urinyi v. U.S.

U.S. Court of Appeals, Second Circuit

Appellate Review

Notice of Appeal — Ineffective Assistance

Urinyi v. U.S.
09-3398-op
Appealed from the Southern District of New York

Background: James Urinyi moves for leave to file a “second or successive” motion to vacate his conviction pursuant to 28 U.S.C. §2255. Urinyi contends his one prior §2255 proceeding — in which he sought and obtained permission to file a late notice of appeal based on his attorney’s ineffective assistance — should not count when determining whether his proposed motion is “second or successive” under the Anti-terrorism and Effective Death Penalty Act. In June 2004, Urinyi, who was represented by counsel, pleaded guilty to one count of conspiracy to distribute, and possession with intent to distribute, 50 grams or more of methamphetamine and one count of distributing and possessing with intent to distribute methamphetamine. Urinyi was sentenced in December 2004 to 121 months’ incarceration. He failed to file a notice of appeal of the judgment. About a year later, he filed a §2255 motion in district court, arguing he was denied effective assistance because his attorney failed to file a timely notice of appeal, despite Urinyi’s explicit instruction to do so. The district court agreed ineffective assistance had been provided.

Ruling: Urinyi’s prior motion does not count when determining whether his proposed motion is “second or successive” under the AEDPA, therefore he does not require leave of the court to file the proposed motion in district court.

John V. Saykanic for the appellant, and Preet Bharara, U.S. Attorney, for the appellee