Opinion
09-CR-0165 (ILG)
2022-08-10
UNITED STATES of America v. Enver MEHMETI, Defendant.
Samantha Alessi, Government Attorney, DOJ-USAO, Central Islip, NY, Philip Arthur Selden, Anna Leigh Karamigios, Richard M. Tucker, Stephen James Meyer, Government Attorneys, Zainab Ahmad, United States Attorneys Office for the Eastern District of New York, Brooklyn, NY, for United States of America.
Samantha Alessi, Government Attorney, DOJ-USAO, Central Islip, NY, Philip Arthur Selden, Anna Leigh Karamigios, Richard M. Tucker, Stephen James Meyer, Government Attorneys, Zainab Ahmad, United States Attorneys Office for the Eastern District of New York, Brooklyn, NY, for United States of America. MEMORANDUM AND ORDER GLASSER, Senior United States District Judge:
Pending before the Court is defendant Enver Mehmeti's motion to proceed on appeal in forma pauperis ("IFP"). [ECF No. 368]. This motion was initially made at the Second Circuit but was returned to this Court for resolution of his IFP application. [ECF No. 367]. The Court finds that Mehmeti is entitled to proceed IFP on two alternative grounds: first, because this appeal is simply a continuation of a prior appeal for which the court fee has already been paid, Mehmeti need not pay the same court fee again, which is functionally equivalent to proceeding IFP; and second, because Mehmeti was previously found to be financially unable to afford adequate defense, Fed. R. App. P. 24(a)(3) provides that he is automatically entitled to IFP status. The motion is therefore GRANTED.
BACKGROUND
The Court has provided the factual background of Mehmeti's conviction and sentence in two separate memoranda and orders. See United States v. Mehmeti, No. 09-CR-0165 (ILG), 2020 WL 2747978 (E.D.N.Y. May 26, 2020); United States v. Mehmeti, No. 09-CR-0165 (ILG), 604 F.Supp.3d 70 (E.D.N.Y. May 26, 2022). Because Mehmeti's motion implicates the procedural history of the case, it will be provided and the ubiquitous familiarity with it will not be assumed.
Mehmeti was represented at his arraignment by retained counsel, Mr. Manuel Ortega. [ECF No. 11]. Approximately two months later, Mr. Ortega's request to be relieved was granted. In support of his subsequent application for the appointment of counsel pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A, Mehmeti submitted an affidavit of indigency. His application was granted, and John Burke was appointed to represent him. [ECF Nos. 47, 49]. Mr. Burke continued to represent him through Mehmeti's arraignment on a superseding indictment, motion to suppress, guilty plea, and sentence on June 9, 2010, to a term of imprisonment for 324 months. [ECF Nos. 73, 76, 83, 128]. Mr. Burke also represented Mehmeti on the appeal of his sentence, which was affirmed on February 1, 2012. [ECF No. 167].
Seven years later, on March 19, 2019, a Notice of Appearance was filed on behalf of Mehmeti by Debevoise & Plimpton. [ECF No. 300]. On January 27, 2020, stating that they were representing him pro bono, they filed a motion to reduce his sentence pursuant to the First Step Act, which the Court denied on May 27, 2020. [ECF Nos. 323, 332]. A Notice of Appeal from that denial was filed on June 3, 2020, along with the required filing fee of $505; the notice stated that Mehmeti would be proceeding pro se for his appeal. [ECF No. 333]. Obviously unknown to counsel was a handwritten Notice of Appeal from Mehmeti, dated June 2, 2020, but that, Mehmeti being incarcerated, was not filed until June 8, 2020. This handwritten Notice provides: "Comes now, Petitioner Mehmeti, Pro se given [sic] notice of appeal from the United States District Court Order denying his motion for sentence reduction under the First Step Act." [ECF No. 334]. While that appeal was pending, the Government moved the Circuit Court to remand the case to this Court to permit it to reconsider its denial of the defendant's sentence reduction motion under the First Step Act in light of the Circuit's decision in United States v. Moore, 975 F.3d 84 (2d Cir. 2020). The motion was granted on October 13, 2021, and the case was remanded to this Court as requested. [ECF No. 348]. Additional briefing, responding to that remand, augmenting arguments initially made, led this Court, upon reconsideration, to grant his motion and order the reduction of Mehmeti's sentence by seven months. [ECF No. 365]. A Notice of Appeal from that Order was filed by Mr. James Schmitz, whose Notice of Appearance on behalf of Mehmeti was "for purposes of First Step Act motion" and who advised that Mehmeti would be proceeding pro se for his appeal. [ECF Nos. 350, 366].
ANALYSIS
To be permitted to commence or defend a court proceeding on appeal IFP is to be permitted to do so without the payment of court fees. The condition for obtaining such permission is to satisfy the court, under oath, that one does not have the ability to pay such fees. 28 U.S.C. § 1915(a)(1); Fed. R. App. P. 24(a)(1)(A). The historical sequence of this proceeding as heretofore described drives the Court to conclude that Mehmeti's IFP motion is moot because the court fee has been paid. That conclusion is compelled for the reasons that follow.
The relevant proceeding was the motion to reduce the defendant's sentence pursuant to the First Step Act. That motion was denied. A Notice of Appeal was then filed, and the required fee of $505 was paid. [ECF No. 333]. While that appeal was pending, no determination having yet been made regarding the merits of it, the case was remanded on the Government's motion to permit the Court to reconsider the defendant's sentence. Upon reconsideration, the Court granted the motion and reduced the sentence by seven months. A Notice of Appeal was then filed from that determination. It is that appeal that is now pending and for which the defendant is seeking IFP status. The merits of that first appeal have never been addressed, and it is precisely those merits that are before the Court of Appeals now, namely should the defendant's sentence be reduced as claimed pursuant to the First Step Act. In other words, this appeal is a continuation of, an iteration of, the first appeal for which the fee was paid. To require the payment of another $505 would be to require the payment of the same fee twice for what is essentially the same appeal. It is for this reason that the Court determines that Mehmeti is entitled to proceed with this appeal without having to pay any further court fee, which is equivalent to having leave to appeal IFP.
This determination would also be required by the literal application of Rule 24(a)(3) of the Federal Rules of Appellate Procedure, which provides in relevant part that "[a] party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization . . . ." Mehmeti was permitted to proceed IFP in this action, having provided an affidavit of indigency and granted counsel to represent him more than 13 years ago. [ECF Nos. 47, 49]. He has executed a more extensive, detailed affidavit of abject poverty here, sworn to be true under penalty of perjury, which eloquently supports an IFP motion. His current attorney has also submitted a Declaration in Support of his Motion for In Forma Pauperis under oath and penalty of perjury. [ECF No. 367]. For this reason, too, his motion for leave to proceed IFP must be granted. See Brooks v. United States, No. 15-CR-0243, 2017 WL 4417812, *2 (S.D.N.Y. Sept. 19, 2017).
CONCLUSION
For the foregoing reasons, Mehmeti's motion is GRANTED.
SO ORDERED.