United States of America v. Timothy A. Endre

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 16, 2025*
Decided January 21, 2025
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 23-3424
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIMOTHY A. ENDRE,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:14-cr-00108-SEB-MJD-01
Sarah Evans Barker,
Judge.
O R D E R
Nearly seven and a half years after pleading guilty to enticing a minor through
internet communications, Timothy Endre asked the district court to construe a letter he
sent shortly after judgment was entered against him as a still-operative notice of direct
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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appeal. Because, among other fatal problems, Endre delayed making this request for
over seven years, the district court properly denied it; therefore we affirm.
Endre pleaded guilty in 2015. He was sentenced to 212 months in prison,
10 years’ supervised release, and $2,500 in restitution. In his plea agreement, Endre
waived his right to challenge the conviction or sentence on any ground, except through
a motion under 28 U.S.C. § 2255 for ineffective assistance of counsel in negotiating the
plea agreement. About a week after judgment, while still represented by counsel, Endre
mailed a letter to the court. He wrote, “I am asking your assistance in the process of
entering a 2255 motion. I believe that’s what I’m looking for, an appeal under the
grounds of ineffective counsel.” He added, “I have limited time to file this motion and
my lawyer refuses to do it.” The judge took no action on the letter, which was unsworn,
and about seven months later, Endre moved under § 2255 to vacate his conviction. On
the submitted form, Endre checked “No” to “Did you appeal from the judgment of
conviction?” His reasons for seeking relief included alleged ineffective assistance of
counsel. The judge denied Endre’s motion because, even if some claims survived the
collateral-challenge waiver in his plea agreement, he presented no evidence that he was
prejudiced by his counsel’s performance.
More than seven years after the judge entered judgment, Endre moved the
district court to “instruct the clerk to correct the Docket” to reflect that his 2015 letter
was his direct “Notice of Appeal.” He invoked Rule 36 of the Federal Rules of Criminal
Procedure. This rule empowers the district court “at any time” to correct “a clerical
error” in the record or “an error in the record arising from oversight or omission.” The
judge denied Endre’s motion, determining that the letter expressed Endre’s desire to file
a motion under § 2255 for ineffective assistance of counsel, not a direct appeal.
The district judge’s ruling was correct. Even under the most charitable reading of
his 2015 letter, it is unclear whether Endre sought help with a “[§] 2255 motion” or with
an “appeal”; he mentions both, but only the former was available as it was the only
option not waived under his plea agreement. Because Endre’s intention was at best
unclear, the clerk did not err, clerically or by oversight or omission, in not docketing
Endre’s ambiguous letter as a notice of appeal. Therefore, Rule 36 provides no source of
relief.
We have considered whether this appeal would fare any better if we construed
Endre’s motion as a petition for a writ of mandamus to direct the clerk to serve Endre’s
letter on the government in an effort to restart a direct appeal. See F ED. R. A PP . P. 3(d)(1).
It would not. For the district judge to issue a writ of mandamus, (1) Endre must present

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No. 23-3424 Page 3
a clear right to relief; (2) the clerk must have violated a plain duty to act; and (3) other
adequate remedies must not be available. Ctr. for Dermatology & Skin Cancer, Ltd. v.
Burwell, 770 F.3d 586, 589 (7th Cir. 2014); see also 28 U.S.C. § 1361. Even if these
requirements were met, mandamus is not required. “Mandamus … is awarded, not as a
matter of right, but in the exercise of a sound judicial discretion … [under] equitable
principles.” In re Skinner & Eddy Corp., 265 U.S. 86, 95–96 (1924).
A writ of mandamus was not justified here. First, Endre “slept upon his rights”
by waiting over seven years to call attention to what he insists was a neglected notice of
appeal, likely prejudicing the government through the passage of time. See Cheney v.
U.S. Dist. Ct. for D.C., 542 U.S. 367, 379 (2004) (quoting Chapman v. Bd. of Cnty. Comm’rs,
107 U.S. 348, 355 (1883)). Second, Endre’s uncontested failure to take any other step
necessary to prosecute his appeal (such as paying any required fee and filing the
docketing statement, see C IR . R. 3) would be grounds for this court to dismiss it. F ED. R.
A PP . P. 3(a)(2). Third, the letter does not demonstrate a clear right to a direct appeal, or
plain duty of the clerk, because as explained above the letter’s intent is at best
ambiguous and Endre had waived his right to a direct appeal. Thus, the district court
was not compelled to provide mandamus relief. See In re LimitNone, LLC, 551 F.3d 572,
575 (7th Cir. 2008).
AFFIRMED

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