A criminal defendant in United States v. Moreno-Rivera
filed an untimely notice of appeal. The government moved to dismiss. The defendant, under prior Second Circuit, claimed that the Court should remand the case to the District Court with instructions to vacate the judgment and enter a new judgment from which an appeal could be taken based on the inadequate assistance of appellate counsel. The Government argued that the precedent only applied in cases where it was undisputed that the defendant had instructed his counsel to file a notice of appeal and the counsel did not do so in a timely manner. The Second Circuit agreed, finding that the record on the issue did not clearly show that the defendant had asked his attorney to file a notice of appeal and dismissed the appeal.
The decision in this case can be found here