United States v. Mark Mosley, 967 F.2d 242 (7th Cir. 1992). · Go Syfert
United States v. Mark Mosley, 967 F.2d 242 (7th Cir. 1992). Cases Citing This Book View Copy Cite
29 citation events (6 in the last 25 years) across 3 distinct courts.
Strongest positive: Cantu v. Bridgestone Corp. (ca7, 2008-12-22)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited as authority (rule) Cantu v. Bridgestone Corp.
7th Cir. · 2008 · confidence medium
Ms. Cantu and Mr. Soto further submit that plaintiffs’ counsel did not receive a copy of the amended order and did not learn of it until Spring 2007. 2 Failing to recognize that this issue affects our jurisdiction and, therefore, cannot be waived, see United States v. Mosley, 967 F.2d 242, 243 (7th Cir.1992), they further contend that Bridgestone and Firestone have waived the issue of mootness.
discussed Cited as authority (rule) Cantu v. Bridgestone Corp.
7th Cir. · 2008 · confidence medium
Ms. Cantu and Mr. Soto further submit that plaintiffs’ counsel did not receive a copy of the amended order and did not learn of it until Spring 2007. 2 Failing to recognize that this issue affects our jurisdiction and, therefore, cannot be waived, see United States v. Mosley, 967 F.2d 242, 243 (7th Cir.1992), they further contend that Bridgestone and Firestone have waived the issue of mootness.
discussed Cited as authority (rule) Cantu, Lizabeth v. Bridgestone Corp
7th Cir. · 2008 · confidence medium
Ms. Cantu and Mr. Soto further submit that plaintiffs’ counsel did not receive a copy of the amended order and did not learn of it until Spring 2007.2 Failing to recognize that this issue affects our jurisdiction and, therefore, cannot be waived, see United States v. Mosley, 967 F.2d 242, 243 (7th Cir. 1992), they further contend that Bridgestone and Firestone have waived the issue of mootness.
discussed Cited as authority (rule) Brian J. Tress v. United States
7th Cir. · 1996 · confidence medium
But in United States v. Mosley, 967 F.2d 242, 244 (7th Cir.1992), without citing Nance or Kirk , we held that the judge’s “failure to tell the defendant about his right to appeal does not authorize relief of any kind if the defendant knew he could appeal.” Mosley relied on the Supreme Court’s decision in United States v. Timmreck, 441 U.S. 780 , 99 S.Ct. 2085 , 60 L.Ed.2d 634 (1979), which was decided after Nance and holds that a violation of the requirement of Fed.R.Crim.P. 11 that the judge, before accepting a guilty plea, advise the defendant of the maximum punishment that he faces …
cited Cited as authority (rule) United States v. Kareem A. Nagib
7th Cir. · 1995 · confidence medium
See 44 F.3d at 622 (citing Castellanos v. United States, 26 F.3d 717, 720 (7th Cir.1994); United States v. Mosley, 967 F.2d 242, 244 (7th *801 Cir.1992)).
discussed Cited as authority (rule) Andres Alvarez v. United States
7th Cir. · 1995 · confidence medium
Hence, "a collateral attack cannot do service for an appeal." United States v. Mosley, 967 F.2d 242, 243 (7th Cir.1992) (citing Sunal v. Large, 332 U.S. 174, 181-82 (1947)). 5 Alvarez argues that the district court erred in not advising him of his right to a direct criminal appeal from his sentence, in violation of Fed.R.Crim.P. 32(a)(2). 1 However, Alvarez's post-conviction motion for relief is subject to the requirements of cause and prejudice.
examined Cited as authority (rule) United States v. Kareem A. Nagib (4×)
7th Cir. · 1995 · confidence medium
Is he making it all up in a desperate effort to have the appeal he willingly bypassed in 1989? 18 Id. at 244 (emphasis added).
discussed Cited as authority (rule) Juan C. Ovalle v. United States
7th Cir. · 1993 · confidence medium
Although counsel's failure to appeal might establish cause in this case, United States v. Mosley, 967 F.2d 242, 243 (7th Cir.1992); Clay v. Director, Juvenile Division, Dept. of Corrections, 749 F.2d 427, 431 (7th Cir.1984), cert. denied, 471 U.S. 1108 (1985), Ovalle has failed to establish that an appeal would have had merit.
discussed Cited as authority (rule) United States v. Nagib
E.D. Wis. · 1993 · confidence medium
Finally, although the Seventh Circuit has not addressed the presumption of prejudice issue raised here, the court believes its decision is in accordance with the court of appeals’s decisions in Thomas, 856 F.2d at 1016 (court held Strickland prejudice component inapplicable in § 2254 case); in Page, 884 F.2d at 302 (“Ineffective assistance [of counsel] may justify vacating and reentering the judgment of conviction”); and in Mosley, 967 F.2d at 243 (court recognized that in circumstances where counsel’s assistance was ineffective, the remedy for such a violation is a new appeal, as if …
discussed Cited "see" United States v. Jones
7th Cir. · 2011 · signal: see · confidence high
See United States v. Mosley, 967 F.2d 242, 243 (7th Cir.1992) (proper way to remedy counsel’s failure to file notice of appeal is to reenter judgment so as to create new opportunity to appeal) (citing, inter alia, Page v. United States, 884 F.2d 300, 302 (7th Cir.1989)); see also United States v. West, 240 F.3d 456 , 460-61 n. 3 (5th Cir.2001).
cited Cited "see" Jack W. Southard v. United States
7th Cir. · 1993 · signal: see · confidence high
See United States v. Mosley, 967 F.2d 242, 244 (7th Cir.1992).
cited Cited "see, e.g." Broeckel v. State
Alaska Ct. App. · 1995 · signal: see, e.g. · confidence medium
See, e.g., United States v. Mosley, 967 F.2d 242, 243 (7th Cir.1992).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Mark MOSLEY, Defendant-Appellant
91-2198.
Court of Appeals for the Seventh Circuit.
Jun 9, 1992.
967 F.2d 242
1992 U.S. App. LEXIS 12992
1992 WL 123842
Barry R. Elden, Asst. U.S. Atty., Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee., Nathan Diamond-Falk, Chicago, Ill., for defendant-appellant.
Easterbrook, Kanne, Wood.
Cited by 21 opinions  |  Published
EASTERBROOK, Circuit Judge.

Mark Mosley, serving 97 months’ imprisonment for distributing cocaine, presents a single argument: that the prosecution did not establish a chain of custody, so three samples of cocaine should not have been admitted into evidence. This perfectly ordinary argument is out of place, for Mosley is not appealing from the judgment of conviction in September 1989. He missed the deadline by ten months, and in 1990 we dismissed his appeal as untimely. Instead he is appealing from the “grant” in April 1991 of a motion under 28 U.S.C. § 2255, which did him no good, as the district court resentenced him in May to the same 97 months. Apparently everyone thought this a clever way to afford Mosley an appeal. Not so fast. The requirements of appellate jurisdiction may not be waived by the consent of the parties.

As a § 2255 action seeking relief on account of the improper admission of evidence this is a loser, covered by the saw that a collateral attack cannot do service for an appeal. Sunal v. Large, 332 U.S. 174, 181-82, 67 S.Ct. 1588, 1592, 91 L.Ed. 1982 (1947). United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), drove home this point when holding that blunders that would be “plain error” on direct appeal do not authorize collateral relief. To obtain post-judgment relief, Mosley must establish not mistaken admission of evidence, or even a shrieking error in the law of evidence, but that the trial and conviction violate the Constitution. Estelle v. McGuire, — U.S.-, 112 S.Ct. 475, 479-80, 116 L.Ed.2d 385 (1991). Yet he does not try to do so. His brief reads as if he were proceeding on direct appeal. Whether we, too, should indulge the “as if” approach depends on why Mosley’s initial appeal was untimely. One possibility is that Mosley did not want to appeal (or was indifferent to the possibility), changing his mind too late to satisfy the 10-day deadline in Fed.R.App.P. 4(b), even allowing for the 30-day extension available to cope with “excusable neglect”. Another is that Mosley did not know he had a right to appeal. Still a third is that he wanted to appeal, but his lawyer did not file the necessary papers.

If Mosley changed his mind too late, he is out of luck. Rules 4(b) and 26(b) cap at 30 days the extension of time to appeal. Reentering a judgment is no more useful in authorizing an appeal than would be an explicit two-year extension of time. But if court or counsel is to blame, there is a genuine constitutional problem — whether under the due process clause of the fifth amendment or the sixth amendment’s implicit guarantee of effective assistance of counsel. The remedy for such a violation is a new appeal, as if from the original judgment. Page v. United States, 884 F.2d 300, 302 (7th Cir.1989); Estes v. United States, 883 F.2d 645, 649 (8th Cir.1989).

What, then, are the facts? Oddly, the record does not reveal them. Mosley has filed an affidavit stating that his attorney told him on the date of sentencing “that she would be filing a notice of appeal of my conviction and sentence” but did not follow through. Leaving one’s client in the lurch is ineffective assistance and ground for stern professional discipline. See Circuit Rule 4. Mosley also contends that the court failed to inform him, as Fed. R.Crim.P. 32(a)(2) requires, of his right to proceed on appeal in forma pauperis. The prosecutor filed a memorandum stating that “[a] review of [the sentencing] transcript discloses that the defendant was[*244] not advised of his right to appeal. The government respectfully suggests that a quick and simple remedy to cure this infirmity is to merely have the defendant resen-tenced and advised of his right to appeal.” The district court obliged, vacating the judgment without further inquiry.

What looked “quick and simple” to the prosecutor and the district judge is irregular and unauthorized. It makes a shambles of the time limits in the rules. Violations of the rules of criminal procedure do not authorize automatic redress on collateral attack; there is the little matter of prejudice. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). A district court’s failure to tell the defendant about his right to appeal does not authorize relief of any kind if the defendant knew he could appeal. Mosley’s own affidavit says that he did know this, and that his lawyer promised to file the notice. Not being told in court what your lawyer told you beforehand, or what you knew already, is no constitutional injury. Marshall v. Lonberger, 459 U.S. 422, 436-37, 103 S.Ct. 843, 852, 74 L.Ed.2d 646 (1983); Stewart v. Peters, 958 F.2d 1379, 1386 (7th Cir.1992).

Relief depended, then, on proof that Mosley’s lawyer dropped the ball. Instead of taking a “quick and simple” path, the district court must take the longer but proper path of figuring out what happened. Did Mosley’s lawyer render ineffective assistance? Is Mosley’s memory playing tricks on him? Is he making it all up in a desperate effort to have the appeal he willingly bypassed in 1989? In the end it may not matter much. A demand that the prosecutor prove a chain of custody through the FBI’s lab may be important when the chemist testifies and a paper trail is the only way to link the evidence under examination to the defendant, but here the arresting agent supplied the foundation by testifying that he seized the particular bags of powder, which bore his initials. The defense stipulated that the bags contained cocaine, and there was no suggestion of tampering or substitution. But we cannot resolve the merits. Unless there was ineffective assistance of counsel, the district court’s order is nothing but an attempt to extend, by 20 months, the time to file a notice of appeal. As no findings establish the foundation for that extension, we dismiss the appeal for want of jurisdiction.