ORDER On December 7, 2015, the Appellant filed a notice of appeal. The Government moved to dismiss Appellant’s appeal as untimely filed on December 11. On December 14, the Appellant, in his response, conceded that his notice of appeal was untimely, but asked the court to nevertheless hear it in the interests of justice on the ground that he had requested his counsel to file a notice of appeal, and that counsel failed to do so. We assume the parties’ familiarity with the underlying facts, procedural history, and issues before the court. In United States v. Fuller, 332 F.3d 60 (2d Cir. 2003), this Court dismissed an appeal as untimely but remanded to the district court with directions to enter a new judgment from which a timely appeal could be taken. See id. at 64 (<HOLDING>). In response to a request for supplemental
holding that where tjhere was no dispute from the trial record and between the parties that the defendant requested his counsel to file a notice of appeal and that counsel did not timely file such a disposition was appropriate despite any potential jurisdictional problems in part to avoid the potential that a habeas petition seeking the same relief would use up the defendants opportunity for a first petition and to obviate the risk that a habeas petition would be untimely holding that claims of ineffective assistance of counsel could not be resolved on the facts appearing in the record and that under such circumstances the defendants remedy is to file a petition for habeas corpus holding that dismissing a habeas petition as timebarred under the aedpa does not violate the suspension clause because petitioner had years to file the petition and gave no explanation why he failed to file on time holding that a habeas corpus petitioner who did not raise an ineffective assistance claim in his first state habeas petition satisfied the cause prong of the cause and prejudice test when counsel on the first state habeas petition was also trial counsel whose performance was allegedly inadequate holding that if defendant could establish ineffective assistance of counsel in failure to file petition for review in his direct appeal then appropriate remedy would be to allow filing of petition for review out of time