10-3299

United States v. Durham

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 5th 4 day of March, two thousand twelve.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 GUIDO CALABRESI,

9 ROSEMARY S. POOLER,

10 Circuit Judges.

11

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13 UNITED STATES OF AMERICA, 

14 Appellee,

15

16 -v.- 10-3299

17

18 SPENCER B. DURHAM, 

19 Defendant-Appellant.

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21

22 FOR APPELLANT: Paúl Camarena, North & Sedgwick,

23 L.L.C., Chicago, Ill.

24

25 FOR APPELLEE: Eugenia A.P. Cowles, Gregory L.

26 Waples, Assistant United States

27 Attorneys, for Tristram J.

1
1 Coffin, United States Attorney

2 for the District of Vermont,

3 Burlington, Vt. 

4

5 Appeal from a judgment of the United States District

6 Court for the District of Vermont (Sessions, C.J.).

7

8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9 AND DECREED that the judgment of the district court be

10 AFFIRMED. 

11

12 Spencer Durham appeals the denial of his motion, filed

13 pursuant to 28 U.S.C. § 2255, seeking to vacate his sentence

14 for obstruction of mail. We assume the parties’ familiarity

15 with the underlying facts, the procedural history, and the

16 issues presented for review.

17 “A defendant claiming ineffective assistance must (1)

18 demonstrate that his counsel’s performance ‘fell below an

19 objective standard of reasonableness’ in light of

20 ‘prevailing professional norms,’ . . . and (2)

21 ‘affirmatively prove prejudice’ arising from counsel’s

22 allegedly deficient representation.” United States v.

23 Cohen, 427 F.3d 164, 167 (2d Cir. 2005) (quoting Strickland

24 v. Washington, 466 U.S. 668, 688, 693 (1984)). “[A] lawyer

25 who disregards a defendant’s specific instruction to file a

26 notice of appeal acts in a manner that is professionally

27 unreasonable . . . .” Campusano v. United States, 442 F.3d

28 770, 773 (2d Cir. 2006) (citing Roe v. Flores-Ortega, 528

29 U.S. 470, 477 (2000)). Durham’s counsel did not file a

30 notice of appeal despite Durham’s timely request. 

31 However, after the deadline to file such a notice

32 passed, but at a time when his counsel could still have

33 filed a motion for an extension, Fed. R. App. P. 4(b)(4),

34 Durham withdrew his request. Accordingly, Durham is not

35 entitled to relief. Cf. Campusano, 442 F.3d at 773

36 (“[W]here counsel’s error leads to ‘the forfeiture of a

37 proceeding itself,’ prejudice will be presumed.” (quoting

38 Flores-Ortega, 528 U.S. at 483-84)).

39 

40 Finding no merit in Durham’s remaining arguments, we

41 hereby AFFIRM the judgment of the district court.

42

43 FOR THE COURT:

44 CATHERINE O’HAGAN WOLFE, CLERK

45

46

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