United States of America v. Collins Kusi Sakyi

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6887
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
COLLINS KUSI SAKYI,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:06-cr-00405-LMB-1; 1:08-cv-00321-LMB)
Submitted: March 25, 2011 Decided: April 7, 2011
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part as modified, vacated in part, and remanded with
instructions by unpublished per curiam opinion.
Collins Kusi Sakyi, Appellant Pro Se. Lawrence Joseph Leiser,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Collins Kusi Sakyi seeks to appeal the district
court’s order adjudicating his 28 U.S.C.A. § 2255 (West Supp.
2010) motion. The district court granted relief by providing
Sakyi fourteen days in which to appeal his criminal judgment,
but dismissed the remainder of the § 2255 claims on the ground
that they were without merit.
An attorney who fails to file a direct appeal when
requested to do so by his criminal defendant client “deprives
the defendant of his Sixth Amendment right to the assistance of
counsel, notwithstanding that the lost appeal may not have had a
reasonable probability of success.” United States v. Peak, 992
F.2d 39, 42 (4th Cir. 1993). Counsel is not absolved of his
duty to file a requested notice of appeal by a waiver of appeal
rights in a plea agreement. United States v. Poindexter, 492
F.3d 263, 271 (4th Cir. 2007).* In this Circuit, where a
prisoner successfully moves, pursuant to § 2255, to reinstate
his right to a direct appeal, the proper remedy is to vacate the
underlying judgment of conviction and reenter the judgment to
permit the Fed. R. App. 4(b) appeal period to run anew. See
Peak
* In this case, the district court declined to find counsel
ineffective, but found that granting Sayki relief on this claim
“is in the efficient administration of justice.”
, 992 F.2d at 42.

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Despite the district court’s grant of the relief
described above, Sakyi’s judgment of conviction was not vacated
and reentered. Furthermore, while the district court denied
relief on the merits as to the remainder of Sakyi’s § 2255
claims, we note that those claims could otherwise be raised in
Sakyi’s reinstated direct appeal. When a prisoner such as Sakyi
has wrongly been denied the right to a direct appeal, he should
not be forced to raise all possible claims against his judgment
of conviction in his first § 2255 motion and thereby, “make the
substantive objections to his conviction and sentence that his
lawyer would have made for him on direct appeal.” In re
Goddard
To place Sakyi in the proper posture to proceed with
his criminal appeal, we grant Sakyi a certificate of
appealability and vacate that portion of the district court’s
order and judgment granting leave to file an out-of-time appeal.
We remand with instructions to vacate and reenter Sakyi’s
judgment of conviction. We further modify the district court’s
denial of relief on Sakyi’s remaining § 2255 claims to be
without prejudice and affirm the denial of relief as modified.
We dispense with oral arguments because the facts and legal
, 170 F.3d 435, 437 (4th Cir. 1999).

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contentions are adequately presented in the materials before the
court and arguments would not aid the decisional process.
AFFIRMED IN PART AS MODIFIED,
VACATED IN PART, AND
REMANDED WITH INSTRUCTIONS

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