Courts have granted relief from default to permit late filing of a notice of appeal where the appellant relied on the jailers or trial attorney to assist in doing so,[117] or was not informed of his or her right to appeal at the time sentence was imposed after trial.[118]  Check the reporter’s transcript of the sentencing hearing to ensure the judge gave the defendant the mandatory advice of the right of appeal.  If not, s/he has an argument that a notice of appeal is timely appealed if filed within the normal period after learning of the right of appeal. 

 

            Warning.  The BIA has recently decided that filing a late notice of appeal is ineffective to defeat the finality of a conviction, for purposes of beginning removal proceedings, even if the criminal court accepts it and begins a late appeal.[119]  While criminal counsel should not rely on a late-filed appeal to delay finality of the conviction for removal purposes, immigration counsel can and should raise the argument that once accepted, the late notice of appeal prevents beginning removal proceedings on account of the conviction, and the Ninth Circuit may well agree.

 

If the defendant has relied upon counsel to file the notice of appeal, and counsel fails to do so, the defendant can be relieved from default.[120]  Even where the defendant has not expressly asked counsel to file an appeal, the United States Supreme Court recently recognized that counsel performs ineffectively in failing to consult with the defendant regarding an appeal and follow the client’s wishes.  In Roe v. Flores-Ortega,[121] the Court held that counsel’s failure to consult with the defendant regarding an appeal will constitute ineffective assistance of counsel when the defendant has expressed an interest in appealing or a rational defendant would have wanted to appeal under the circumstances of the case.  If a rational defendant would have wanted to appeal, counsel must advise the defendant “about the advantages and disadvantages of taking an appeal, and make a reasonable effort to discover the defendant's wishes.”  Counsel’s failure to do so will entitle the defendant to an out-of-time appeal, even if s/he never requested that his or her attorney file an appeal.  A separate habeas corpus action should be filed alleging ineffective assistance on this basis and seeking an out-of-time appeal as the remedy for the constitutional deprivation.  For a more comprehensive discussion of the Flores-Ortega case, see Chapter 7, Grounds, Ineffective Assistance of Counsel. 

 

            When a late notice of appeal is filed, the clerk will mark it “received (date) but not filed,” and advise the party seeking to file it that it was not filed because it was received after the filing period had elapsed.[122]  The defendant can file a petition for a writ of mandamus or habeas corpus, or a motion for relief from default in the court of appeal, which is usually granted in a proper case within a few weeks after filing.  From this point on, the conviction is arguably “nonfinal.”[123]  The BIA has held that where a defendant has failed to file a timely appeal, but had filed an application for discretionary permission to file a late appeal, the conviction was still final and would not bar deportation.  The court pointed out, “There is no evidence, or even an allegation, that the [state] court entered an order granting the respondent permission to file a late appeal . . . .”[124]  Under this decision, however, after the court of appeal grants an order directing the clerk to file a late notice of appeal, the conviction would no longer be final, and any deportation proceedings should be terminated.[125]  A year or two later, if the conviction is ultimately affirmed, the DHS may restart the deportation proceedings if it becomes aware of the ultimate ruling.

[117] Houston v. Lack, 487 U.S. 266 (1988); People v. Knauer (1988) 206 Cal.App.3d 1124, 253 Cal.Rptr.910.

[118] California Rule of Court 470 requires the sentencing court to inform the defendant at the time of sentence of the right to appeal.  The court of appeal possesses the power to require the processing of a late appeal under proper circumstances.  Castro v. Superior Court (1974) 40 Cal.App.3d 614, 619, 115 Cal.Rptr. 312, 314‑15.  Courts are liberal in granting this relief for several reasons.  First, the state's interest in a just outcome reinforces an appellant’s claim that his appeal be considered on the merits.  People v. Acosta (1969) 71 Cal. 2d 683, 78 Cal.Rptr. 864, 867.  In addition, the approach of the courts has been tempered by the rule that any  waiver of the right of appeal must be made knowingly and intelligently.  In re Anderson (1971) 6 Cal.3d 288, 293, 98 Cal.Rptr. 825, 829; see also People v. Acosta, supra, 78 Cal.Rptr. at 867.  If there was no knowing and intelligent waiver of the right to appeal, the court should permit late filing of the notice of appeal.  In addition, due process requires all reasonable doubts to be resolved in favor of the defendant and the court should avoid a forfeiture based on a technicality.  See People v. Chapman (1971) 5 Cal.3d 225, 95 Cal.Rptr. 533, 537.

[119] Matter of Cardenas-Abreu, 24 I. & N. Dec. 795 (BIA May 4, 2009)(a conviction need not be final to trigger negative immigration consequences if a pending appeal was filed late – even where an appellate court has accepted the appeal).  See generally Immigrant Defense Project, Practice Advisory on the Conviction Finality Requirement: The Impact of Matter of Cardenas-Abreu (May 11, 2009), www.immigrantdefenseproject.org.

[120] See People v. Acosta, supra; Castro v. Superior Court, supra; People v. Ribero (1971) 4 Cal.3d 55; People v. Riley (1977), 73 Cal.App.3d Supp. 1.

[121] Roe v. Flores-Ortega, 528 U.S. 470, 480, 145 L.Ed.2d 985, 120 S.Ct. 1029 (2000).

[122] Cal Rules of Ct 8.782(a); I Continuing Education of the Bar, Appeals and Writs in Criminal Cases § 2.9, p. 54.1 (2008).

[123] In re P-V, Int. Dec. 3232 (BIA 1994).

[124] Ibid. at 5.

[125] Matter of Sirhan, 13 I. & N. 592 (BIA 1970).

BIA

BIA: Conviction is Final even though it's on Late Appeal"But Casts Doubt on Whether Finality is Still Required
The BIA today released a split decision holding that a late appeal of a criminal conviction does not undermine the conviction's finality. Matter of Cardenas Abreu, 24 I&N Dec. 795 (BIA 2009). In Cardenas-Abreu, the BIA considered an appeal of a New York state criminal conviction for first degree burglary, NY Penal 140.30. The respondent failed to appeal his conviction within the 30 days allowed by New York's criminal procedure laws to file a direct appeal of a criminal conviction. Meanwhile, DHS initiated removal proceedings and the respondent was ordered removed due to his conviction. After being ordered removed, the respondent requested permission from a New York state court to file a late appeal pursuant to NY Crim. Proc. 460.30 which allows an appellate court to extend the time in which to file an appeal. The request was opposed by the prosecutor, but the New York court nonetheless allowed the respondent to file a late appeal of his criminal conviction. The BIA, therefore, was essentially charged with determining whether the existence of a late appeal means that the conviction is not final. After noting that Congress first defined the term conviction when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the Board turned to its interpretation of Congress's intent in enacting IIRIRA: Congress intended to prevent the immigration laws from being 'dependent on the vagaries of State law' when it defined the term 'conviction' in section 101(a)(48)(A) of the Act. Matter of Cardenas-Abreu, 24 I&N Dec. at 802. Because allowing the pendency of a late appeal under New York's deadline extension statute would create[] significant uncertainty and delay in reaching an ultimate resolution regarding the existence of an otherwise final conviction, the Board concluded that the respondent's late appeal has no impact on the finality of his conviction. Matter of Cardenas-Abreu, 24 I&N Dec. at 802. Does INA Even Require Finality After IIRIRA? Several members wrote separate opinions to address an outstanding question that the majority opinion explicitly avoided deciding: Does the IIRIRA definition of conviction"found at INA 101(a)(48)(A)"require finality to serve as the basis for removal? This issue is being considered by federal courts and has enormous implications for immigrants facing removal because of criminal convictions. For its part, the majority suggested that finality is required: The legislative history of the IIRIRA accompanying the adoption of the definition of a conviction gave no indication of an intent to disturb this principle that an alien must waive or exhaust his direct appeal rights to have a final conviction. With this backdrop regarding the broad context of this issue and the statute, a forceful argument can be made that Congress intended to preserve the long-standing requirement of finality for direct appeals as of right in immigration law. Matter of Cardenas-Abreu, 24 I&N Dec. at 798 (internal citations omitted). Board Member Greer, in a lengthy dissenting opinion joined by Board Members Neal, Miller, Hess, Adkins-Blanch, and Wendtland, argued that INA 101(a)(48)(A) requires that a conviction must be final if it is to be used to remove a non-citizen from the country. Matter of Cardenas-Abreu, 24 I&N Dec. at 811 (Greer, dissenting). Similarly, in a concurring opinion, Board Member Grant explained that the 'finality' requirement does still apply to cases where a direct appeal is pending or direct appeal rights have not been exhausted. Matter of Cardenas-Abreu, 24 I&N Dec. at 802 (Grant, concurring). In contrast, Board Member Pauley, joined by Board Member Cole, explained at length that INA 101(a)(48)(A) contains no finality requirement. Matter of Cardenas-Abreu, 24 I&N Dec. at 810 (Pauley, concurring).

Other

CAL POST CON " APPEAL " FUGITIVE DISENTITLEMENT DOCTRINE " DEPORTED APPELLANT DOES NOT LOSE RIGHT TO CONSIDERATION OF APPEAL CRIMINAL LAW & PROCEDURE, IMMIGRATION LAW
People v. Puluc-Sique, No. A123451 People's request to extend the appellate disentitlement doctrine (applicable to fugitives) to a criminal defendant who had been deported from the country by the ICE is denied as, absent additional circumstances not presented here, a defendant who has been deported does not stand in the same shoes as one who has voluntarily placed himself beyond the court's control.