The Clerk of Court is respectfully instructed to amend the official case caption as… v. Vilar UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 August Term,…

* The Clerk of Court is respectfully instructed to
amend the official case caption as shown above.
** The Honorable Jed S. Rakoff of the United States
District Court for the Southern District of New York,
sitting by designation.
*** The Honorable Debra Ann Livingston, an original
member of this panel, recused herself. The remaining two
panel members agree on the disposition and decide this
1
10-521-cr (L)
United States v. Vilar
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2010 5
6
7
(Submitted: May 31, 2011 Decided: July 19, 2011) 8
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Docket Nos. 10-521(L), 10-580(Con), 10-4639 (Con) 10
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UNITED STATES OF AMERICA, 14
15
Appellee, 16
17
-v.- 10-521(Lead) 18
10-580(Con) 19
ALBERTO VILAR and GARY ALAN TANAKA, 10-4639(Con) 20
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Defendants-Appellants.*
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Before: DENNIS JACOBS, Chief Judge, 26
JED S. RAKOFF, ** District Judge.***
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motion pursuant to Second Circuit Internal Operating
Procedure E(b).
2
Alberto Vilar moves to withdraw his direct criminal 1
appeal with leave to reinstate it after he has finished 2
pursuing an application for a writ a habeas corpus before 3
the district court below. The motion is opposed by the 4
United States and Vilar’s codefendant. In the alternative, 5
Vilar moves for a six-month extension to file his appellate 6
brief. We DENY Vilar’s motion to withdraw his direct appeal 7
and GRANT Vilar’s motion for a six-month extension to file 8
his appellate brief. 9
10
FOR MOVANT: Vivian Shevitz 11
Brooklyn, NY 12
13
Jane Simkin Smith 14
Millbrook, NY 15
16
Susan C. Wolfe 17
Hoffman & Pollok LLP 18
New York, NY 19
20
21
FOR RESPONDENT: Benjamin Naftalis 22
Assistant U.S. Attorney 23
U.S. Attorney’s Office 24
Southern District of New York 25
New York, NY 26
27
28

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3
PER CURIAM: 1
Alberto Vilar timely appealed his criminal conviction 2
in the United States District Court for the Southern 3
District of New York (Sullivan, J.). He now moves to 4
withdraw his direct appeal with leave to reinstate it after 5
he has finished pursuing an application for a writ a habeas 6
corpus in the district court. The United States and Vilar’s 7
codefendant both oppose this motion on the ground that it 8
will delay the direct appeal. The government further argues 9
that grant of the motion would invert the ordinary sequence 10
of proceedings in which a defendant exhausts his direct 11
appeals before pursuing collateral attacks. If his motion 12
to withdraw is denied, Vilar moves in the alternative for a 13
six-month extension to file his appellate brief. We hereby 14
DENY Vilar’s motion to withdraw his direct appeal, but we 15
GRANT Vilar’s motion for a six-month extension to file his 16
appellate brief. 17
18
BACKGROUND 19
In early 2010, Alberto Vilar and Gary Alan Tanaka were 20
convicted of multiple fraud-related felonies by a jury in 21
the United States District Court for the Southern District 22

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4
of New York (Sullivan, J.). Their timely appeals were 1
consolidated in this docket. On appeal, Vilar received new 2
counsel, who contend that his trial counsel inadequately 3
developed the trial record, and thus afforded Vilar 4
ineffective assistance of counsel in violation of his Sixth 5
Amendment rights. To correct this perceived deficiency, 6
Vilar now wishes to collaterally attack his conviction by 7
applying for a writ of habeas corpus from the district court 8
pursuant to 28 U.S.C. § 2255. If successful, the writ would 9
vacate his conviction and require a retrial in which he 10
would have a new opportunity to develop the record. 11
Because the filing of an application for a writ of 12
habeas corpus would result in two attacks on his conviction 13
pending simultaneously, Vilar now moves this court to let 14
him withdraw his direct appeal without prejudice and with 15
leave to reinstate it after he finishes litigating his 16
habeas application before the district court. 17
The government and Tanaka both oppose Vilar’s motion on 18
the ground that it would significantly delay the direct 19
appeal. If Vilar’s motion is granted, Tanaka requests that 20
his appeal be severed to avoid such delay. The government 21
also invokes the waste of government resources and the 22

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5
invasion of the traditional requirement that a defendant 1
exhaust all direct appeals before launching a collateral 2
attack. Tanaka and the government point out that denial of 3
the motion would not prejudice Vilar because he could pursue 4
habeas relief after (or simultaneously with) his direct 5
appeal. 6
In the event that his motion to withdraw is denied, 7
Vilar moves in the alternative for a six-month extension to 8
file his appellate brief. Vilar argues that because his 9
appellate lawyers are new, they need that time to fully 10
review the trial record, which he characterizes as large and 11
complex. Tanaka endorses Vilar’s request for an extension, 12
but requests that the filing deadline be extended only one 13
month. The government opposes any extension, arguing that 14
Vilar now has three lawyers at work, that the case is not 15
particularly complex, and that Vilar’s lawyers have already 16
had over a year to prepare his appeal. 17
18
DISCUSSION 19
A criminal defendant can challenge his conviction by 20
direct appeal to this Court or by collateral attack, seeking 21
a writ of habeas corpus from the federal district court 22

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6
under 28 U.S.C. § 2255. Ordinarily, a defendant must 1
exhaust his direct appeals before applying for habeas 2
relief. “[H]abeas petitions filed before the petitioner has 3
exhausted his direct appeal are generally considered 4
premature.” Wall v. United States, 619 F.3d 152, 154 & n. 2 5
(2d Cir. 2010) (per curiam). But both measures may be 6
pursued simultaneously. United States v. Outen, 286 F.3d 7
622, 632 (2d Cir. 2002) (observing there is no 8
jurisdictional bar to a district court adjudicating a § 2255 9
motion concurrently with the direct appeal). 10
By moving to withdraw his direct appeal with leave to 11
reinstate it after his habeas application has been 12
litigated, Vilar seeks to pursue a third route: 13
collaterally attacking first and directly appealing second. 14
This initiative raises concerns both jurisdictional and 15
practical. 16
17
I 18
The filing deadlines for direct appeals under Federal 19
Rule of Appellate Procedure 4 are “mandatory and 20
jurisdictional.” Outen, 286 F.3d at 630; see also United 21
States ex rel. McAllan v. City of New York, 248 F.3d 48, 51 22

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7
(2d Cir. 2001) (per curiam) (“The Fed. R. App. P. 4 time 1
requirements for taking an appeal have been treated as 2
especially rigid, and a federal court’s authority to extend 3
or suspend those limits is narrowly limited.”). Under 4
Appellate Rule 4(b), a defendant must file a notice of 5
appeal within 14 days of the later of the entry of judgment 6
by the district court or the notice of appeal by the 7
government. Fed. R. App. P. 4(b)(1). Upon a motion from 8
the defendant, this Court may extend this deadline up to 30 9
days, but no longer. Fed. R. App. P.(b)(4); Fed. R. App. P. 10
26(b) (“[T]he court may not extend the time to file...a 11
notice of appeal (except as authorized by Rule 4) or a 12
petition for permission to appeal.”). After the expiration 13
of the 30-day extension period, this Court is divested of 14
jurisdiction to hear the direct appeal. Outen, 286 F.3d at 15
630. In other words, if this Court does not take 16
jurisdiction over a direct appeal within the deadlines 17
prescribed by Rule 4, it will lack and cannot regain 18
jurisdiction to hear that appeal. 19
Vilar asks us to dismiss his appeal--ousting us of 20
appellate jurisdiction over it--while still retaining the 21
ability to revive our jurisdiction at some later date, 22

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8
presumably much farther in the future than the 30-day 1
extension we may grant under Rule 4(b). We lack authority 2
to grant such relief. After the 14-day filing deadline and 3
any extensions authorized by Rule 4(b), we can no longer 4
take appellate jurisdiction over an appeal. Mendes Junior 5
Int’l Co. v. Banco Do Brasil S.A., 215 F.3d 306, 311 (2d 6
Cir. 2000) (“[W]e do not interpret the rules of procedure as 7
allowing the court to revive a losing party’s right to 8
appeal after both the original appeal period and the 9
permissible grace period have expired.”). Nor may we 10
attempt to circumvent this jurisdictional limitation, even 11
if an extension would be non-prejudicial, convenient, or 12
fair. See McAllan, 248 F.3d at 52 (“[A]ppellant...sought to 13
expand appellate jurisdiction by asking the district court 14
to re-write history and ‘re-issue’ his order from which a 15
‘timely’ appeal could then be taken. New jurisdictional 16
life cannot be breathed into an appeal whose filing time has 17
already expired.”). 18
While we lack jurisdictional authority to grant Vilar 19
the relief he articulates, we may grant Vilar the effective 20
equivalent. Instead of dismissing his appeal, we may simply 21
stay our adjudication of it pending the outcome of his 22

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9
§ 2255 application. Because a stay never ousts us of 1
appellate jurisdiction, it avoids the jurisdictional 2
constraints of Rule 4. We have done this in the past when 3
litigants have sought the same relief Vilar seeks here. 4
In United States v. Hernandez, 5 F.3d 628 (2d Cir. 5
1993), a defendant convicted in federal district court 6
sought the dismissal of his direct appeal with leave to 7
reinstate it after the district court adjudicated his § 2255 8
habeas application. Without considering the jurisdictional 9
constraints of Rule 4, we agreed to wait to adjudicate 10
Hernandez’s direct appeal until after the district court 11
considered his habeas application. In so doing, we did not 12
specify the mechanism by which we could legitimately delay 13
our consideration of Hernandez’s direct appeal. 14
The defendant in Outen likewise requested the dismissal 15
of his direct appeal with leave to reinstate it after 16
adjudication his § 2255 application. We considered the 17
jurisdictional constraints of Rule 4 and construed the 18
relief we granted in Hernandez as a stay rather than a 19
dismissal and reinstatement. Outen, 286 F.3d at 627-632 & 20
n.7. We ultimately granted Outen the same stay we granted 21

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10
Hernandez, holding that we had jurisdiction to grant such 1
stays. Id. at 631-32. 2
Together, Hernandez and Outen make clear that we may 3
construe a defendant’s request for a dismissal with leave to 4
reinstate as a motion for a stay, and that we have 5
jurisdiction to grant such a discretionary stay. We now 6
construe Vilar’s motion as a request for a stay of his 7
direct appeal pending the outcome of his habeas application. 8
Having determined that we have jurisdiction to grant such a 9
stay, we turn to the question of whether we should do so. 10
11
II 12
We generally prefer to adjudicate direct appeals prior 13
to, rather than after, collateral attacks. A “collateral 14
attack is not a substitute for direct appeal and petitioners 15
are therefore generally required to exhaust direct appeal 16
before bringing a petition § 2255.” United States v. Dukes, 17
727 F.2d 34, 41 (2d Cir. 1984); see also Wall, 169 F.3d at 18
154. 19
Vilar offers two reasons for inverting this general 20
preference: judicial economy and fairness to the defendant. 21
We find neither reason persuasive. 22

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11
A 1
Vilar argues that, as a matter of efficiency, a 2
successful habeas motion would obviate the direct appeal. 3
This is true enough, but so is the converse: If Vilar’s 4
direct appeal were adjudicated first and succeeded, that 5
would eliminate the need for his § 2255 application. Absent 6
a showing that the habeas application is much more 7
promising, judicial economy would seem to favor pursuing the 8
direct appeal first. Direct appeals are generally less time 9
consuming and expensive than habeas application because they 10
involve a fixed record and simpler procedures and standards 11
of review. Moreover, successful habeas applications often 12
result in new trials, while successful direct appeals often 13
do not. And unsuccessful habeas applications often lead to 14
appeals to the circuit court, necessitating another round of 15
briefing and judicial consideration. 16
Vilar has not shown that his § 2255 motion is more 17
likely to succeed than his direct appeal. Compared to 18
direct appeals, habeas proceedings impose tougher standards 19
on the defendant and require more demanding showings. Vilar 20
provides no reason to think his case is unusual in this 21
regard. 22

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12
Vilar contends that, even if he does not succeed on his 1
§ 2255 motion, judicial resources will still be saved 2
because his appeal from the district court’s denial of his § 3
2255 motion could be consolidated with his direct appeal. 4
While such consolidation would reduce the number of 5
appellate adjudications, few if any judicial resources would 6
be conserved. The consolidated appeals would entail 7
different standards, different records, and separate 8
analyses. And simultaneous adjudication of interrelated 9
issues using different standards and different records would 10
increase the complexity of the consolidated appeal. Thus, 11
there is little reason to believe that a consolidated appeal 12
would save significant time or energy compared to two 13
separate appeals. 14
We therefore conclude that interests of judicial 15
economy disfavor staying Vilar’s direct appeal. 16
17
B 18
Vilar also argues it is unfair to ask him to litigate 19
his direct appeal on the current record, which he asserts 20
was insufficiently developed by constitutionally ineffective 21
trial counsel. Again, even assuming Vilar’s allegation is 22

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correct, this insufficiency would not be rectified by 1
allowing him to adjudicate his § 2255 application first: 2
Any additional fact-finding done pursuant to a habeas 3
proceeding would not be part of the record on which we would 4
adjudicate his direct appeal. And, as discussed above, if 5
Vilar were to succeed on his § 2255 application, there would 6
be no immediate direct appeal at all. Win or lose, Vilar’s 7
motion will not affect the record on which we will decide 8
his direct appeal. And even if Vilar were required to 9
litigate his direct appeal on an underdeveloped record, he 10
would not be prejudiced by this fact because he could still 11
pursue his collateral attack. 12
Staying adjudication of Vilar’s direct appeal would 13
impose delay on his co-defendant, Tanaka, and the 14
government. Neither Tanaka nor the government has done 15
anything to delay this appeal, and it would be unfair to 16
them to hold it in abeyance indefinitely while Vilar pursues 17
alternative means of attacking his conviction. We could 18
eliminate any unfairness to Tanaka by severing his appeal 19
from Vilar’s, but this would be highly inefficient and would 20
be unfair to the government, which would then have to 21
litigate separately two almost identical appeals. 22

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14
Fairness, like judicial economy, favors denying Vilar’s 1
motion to stay his direct appeal. 2
3
III 4
In the alternative, Vilar seeks a six-month extension 5
to file his appellate brief, so his new appellate counsel 6
can fully digest the record and prepare a zealous defense. 7
Tanaka endorses this extension, but requests that it be 8
limited to one month. 9
We conclude that delaying the direct appeal by six 10
months will not seriously prejudice the government or 11
Tanaka. We therefore grant Vilar’s request for a six month 12
extension to file his appellate brief. 13
14
CONCLUSION 15
Vilar’s motion to withdraw his direct appeal is DENIED. 16
Vilar’s motion for a six-month extension to file his 17
appellate brief is GRANTED. Vilar’s appellate brief is now 18
due six months from the issuance of this opinion. 19

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