Legal Services Corp: Yet Another Example of "Public Servants" in Action
Nice Takedown

Ineffective Assistance of Appellate Counsel

Think fast: After you file a notice of appeal in a criminal case, the court clerk sends you a letter indicating that notice of appeal was defective.  Do you a) cure the defect or b) conclude that the clerks are wrong and ignore the letter?

If you're Kevin F. Carlucci [the notes below the case style indicates that Carlucci argued the case, but the judges never identify him by name in the body of the opinion], here's what you do:

When the District Court notified him of a possible error, however, Carelock’s counsel acknowledged that he took no immediate action that corrected the problem. He stated that upon receiving notification of an error from the Court, he reviewed a printout copy of the notice of appeal (the one that bore Carelock’s name and information) and concluded that there was nothing wrong. At this time, Carelock’s counsel neglected to review the document that he had actually electronically filed with the District Court.

Now what was Carlucci mistake?  It was an easy mistake to make: He filed the cover sheet from another case with the court.  When you file a lot of appellate briefs, you're bound to make such a mistake.  It's the equivalent of making a typo.  No big deal.  Fix the error.  The clerks will be happy.  You will be happy.  And your client will be happy.

But Carlucci didn't fix the error.  He didn't call the clerks.  He just decided there wasn't an error, and went about on his merry way.

Then, some 90-days later, Carlucci acknowledged his error.  By then it was too late.  Had he corrected the error sooner, the court could have heard his client's case.  United States v. Carelock (here).  (Via Howard Bashman - who I'm 100% sure would have called the clerk's office to sort through the problem.)

There's a lesson in here for the youngsters.  The clerks are always right.  Always.  Even when they are wrong, they are right.  If you get a letter from the clerk's office noting a defect, drop whatever you are doing, and figure out what the problem is. 

Even if you don't see a problem, call the clerk's office.  Because if you don't, and you're wrong, your client's appeal will not be heard.  Period.

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