The opinion of the court was delivered by: Sue E. Myerscough United States District Judge
Monday, 23 July, 2012 04:05:11 PM Clerk, U.S. District Court, ILCD
OPINION SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on Defendant Kenneth G. Crissey's Motion for Leave to File Out-of-Time Appeal Pursuant to Federal Rules of Appellate Procedure (d/e 37) and Motion for Hearing (d/e 38). For the reasons that follow, the Motions are DENIED.
In February 2009, Defendant was charged with two counts of distribution of child pornography (Counts 1 and 2), one count of possession of child pornography (Count 3), and a forfeiture count (Count 4). See Indictment, d/e 2. In April 2009, Defendant pled guilty pursuant to a Plea Agreement. See Plea Agreement (d/e 10). In the Plea Agreement, Defendant waived his right to appeal his conviction and sentence and waived his right to collaterally attack the conviction and/or sentence. See Plea Agreement, p. 19-20.
On September 21, 2009, the Court sentenced Defendant to 204 months on each of Counts 1 and 2 and 120 months on Count 3, all to run concurrently, and lifetime supervised release on all counts. The Court also forfeited all property listed in Count 4 of the Indictment. On September 25, 2009, the Judgment was entered. No direct appeal was filed.
On July 9, 2012, Defendant filed the Motion for Leave to File Outof-Time Appeal Pursuant to Federal Rule (Motion) (d/e 37) and a request for a hearing (d/e 38). In the Motion, Defendant asserted that he told trial counsel to file a notice of appeal notwithstanding the appellate waiver provisions in the Plea Agreement. (The record shows that Assistant Federal Defender Robert Joseph Scherschligt represented Defendant.) Defendant asserts that he wanted to challenge the constitutionality of the lifetime supervised release and the "sexual predator" classification. According to Defendant, trial counsel told Defendant he would file the notice of appeal.
On December 10, 2010, Defendant contacted trial counsel regarding the status of his appeal. Defendant attached to his Motion the January 14, 2011 response he received from Assistant Federal Defender Thomas C. Wilmouth. Attorney Wilmouth explained why Defendant had no grounds for appeal. Attorney Wilmouth also noted:
In any event, your plea agreementcalled for you to waive your right to appeal any portion of your case, including a right to allege your lawyer was ineffective before the Court, pursuant to a habeas corpus challenge under 28 U.S.C. § 2255. As I see it then, the only appeal right you have left is to file a petition under 28 U.S.C. § 2255 that alleges your lawyer was ineffective for allowing you to enter into a plea agreement that had you waive your habeas corpus appeal rights. You win that, you may be able to get your habeas corpus appeal right back. Any filing of a petition under 28 U.S.C. § 2255 must be filed within one-year of the conclusion of your case, which in this instance would have been one year from September 25, 2009. As such, I believe your habeas corpus appeal rights have passed.
Defendant also supported his Motion with his own Affirmation, stating that he directed trial counsel to timely file a notice of appeal and counsel failed to do so.
Defendant asserts that his trial counsel "had a constitutional obligation to file a timely notice of appeal on the defendant's behalf regardless of the appellate waiver provisions contained within the plea agreement" and that by failing to do so, counsel's performance was constitutionally defective. Motion, p. 5 (d/e 37).
Defendant brought his motion pursuant to the Federal Rules of Appellate Procedure. Construing Defendant's motion as one to extend the time for filing a notice of appeal, the ...