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United States v. Mitchell

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


August 21, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DERRICK S. MITCHELL, DEFENDANT.

The opinion of the court was delivered by: Stiehl, District Judge

ORDER

Before the Court is defendant/petitioner's pro se motion for leave to file appeal out of time. Although this motion was filed under this criminal case number, it should have been filed in Mitchell v. United States, No. 92-906-WDS.

In his motion, defendant/petitioner asserts that his counsel did not inform him of his right to appeal the denial of his habeas petition. The Court dismissed the habeas petition on January 2, 2003, finding that petitioner was procedurally barred from presenting his claim and, even if not barred, no issues presented entitled him to relief. (See Memorandum & Order, Doc. 3, p. 5).

It is well settled that there is no constitutional right to counsel for post-conviction appellate proceedings, Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987). Therefore, the failure of appellate counsel to advise defendant/petitioner of his right to appeal does not rise to the level of a constitutional violation which would give rise to defendant/petitioner's right to file a late notice of appeal. Id.*fn1

Accordingly, the Court DENIES defendant/petitioner's motion to file late notice of appeal (Doc. 725). The motions for appointment of counsel (Doc. 726) and for a status report (Doc. 730) are DENIED as moot. The Court DIRECTS the Clerk of the Court to file defendant/petitioner's motions and this Order in the civil case number.

IT IS SO ORDERED.

WILLIAM D. STIEHL DISTRICT JUDGE


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