### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 1290

E RIK S OLANO

,

Petitioner

‐ Appellant

,

v.

U NITED S TATES OF A MERICA

, Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:13

‐ cv

‐ 327

— Jon E. DeGuilio

, Judge

.

____________________

A RGUED D ECEMBER 9, 2015

— D ECIDED F EBRUARY 5, 2016

____________________

Before E ASTERBROOK and H AMILTON

, Circuit Judges

, and

P ALLMEYER

, District Judge

. *

P

ALLMEYER

, District Judge

. Erik Solano appeals from an

order of the district judge dismissing his 28 U.S.C. § 2255

motion to vacate his sentence. Solano, who waived the right

to appeal from his sentence, nevertheless asserts that trial

* Of the United States District Court for the Northern District of Illi

‐

nois, sitting by designation.2 No. 15

‐ 1290

counsel’s failure to file an appeal at his request constitutes

ineffective assistance in violation of the Sixth Amendment.

The district court dismissed his petition as untimely, but we

are free to affirm on any ground presented in the record.

United States v. Flores

‐ Sandoval

, 94 F.3d 346, 349 (7th Cir. 1996)

(citing United States v. Mustread

, 42 F.3d 1097, 1104 (7th Cir.

1994)). As the government argued below, the Sixth Amend

‐

ment does not require an attorney to accede to a defendant’s

request to file an appeal where the defendant has knowingly

and voluntarily waived that right as part of a valid plea

agreement. Accordingly, we affirm the dismissal of Solano’s

§ 2255 petition.

I

In April 2011, a grand jury indicted Erik Solano on two

counts of distributing cocaine and one count of conspiring to

obtain and distribute marijuana, in violation of 21 U.S.C.

§ 841. Solano pleaded guilty pursuant to an agreement in

which the government agreed to dismiss one of the cocaine

counts and recommend a reduction of the sentencing guide

‐

line range to reflect Solano’s acceptance of responsibility.

Solano’s written plea agreement included a waiver of Sola

‐

no’s right to appeal his conviction, sentence, or any restitu

‐

tion order on any ground, including any claim of ineffective

assistance of counsel. He also agreed not to contest the man

‐

ner in which his conviction, sentence, or any restitution or

‐

der was determined or imposed on any ground, including

any claim—on direct appeal or by way of a post

‐ conviction

petition—that he had received ineffective assistance of coun

‐

sel.

At the change of plea hearing, on June 8, 2011, the magis

‐

trate judge explained the rights that Solano was giving up byNo. 15

‐ 1290 3

pleading guilty. The magistrate judge also reviewed particu

‐

lar provisions contained in the plea agreement, including

Solano’s appeal waiver:

THE COURT: So what you are doing here in

this particular paragraph with

those particular sentences is

you are giving up that right to

appeal. So, as it says, you will

not be able to appeal your sen

‐

tence, your conviction or any

restitution order or the manner

in which it was determined to

any Court on any ground. Do

you understand that?

DEFENDANT: Yes, Your Honor.

THE COURT: All right. That’s important.

At the conclusion of the hearing, the magistrate judge

found that Solano had knowingly waived his rights and that

his plea was voluntary. 1 At a sentencing hearing on October

1 At the time of Solano’s plea hearing, this court had not yet decided

United States v. Harden

, which held that, pursuant to the Federal Magis

‐

trates Act, United States Magistrate Judges are not permitted to accept

guilty pleas in felony cases. 758 F.3d 886, 888 (7th Cir. 2014). Although

this court has not yet decided whether Harden applies retroactively in

collateral proceedings, Solano has waived this argument because his

§ 2255 petition does not challenge the magistrate’s acceptance of his

guilty plea, and Solano has not raised this issue on appeal. See Valenzuela

v. United States

, 261 F.3d 694, 700 n.2 (7th Cir. 2001) (stating that by fail

‐ ing to raise an issue in a § 2255 petition, a petitioner waives that issue);

United States v. Barnes

, 660 F.3d 1000, 1006 (7th Cir. 2011) (“[A]ny issue

that could have been raised on appeal but was not is waived[.]”).4 No. 15

‐ 1290

21, 2011, the district court accepted the plea and imposed a

sentence of 168 months, the bottom end of the guideline

range, to be followed by three years of supervised release.

As the hearing concluded, the court reminded Solano, and

Solano acknowledged, that he had waived the right to ap

‐ peal his conviction or sentence as part of his plea agreement.

Judgment was entered on October 26, 2011, and became final

on November 9, 2011, the expiration date for filing a notice

of appeal. See F ED

. R. A PP

. P. 4(b)(1)(A).

Solano did not appeal. Approximately two and a half

years later, however, on April 15, 2013, Solano filed a pro se

§ 2255 motion to vacate his sentence, asserting two claims of

ineffective assistance of counsel: (1) that trial counsel was

ineffective in negotiating the plea agreement; and (2) that

trial counsel was ineffective in advocating for Solano at sen

‐ tencing. Solano wrote that the grounds for his § 2255 petition

had not been previously presented to a federal court “due to

the ineffective assistance of counsel and his failure to file my

appeal like he said he would.” Solano contended that he

“just became aware that [his] attorney did not file [his] direct

appeal,” and urged that he was entitled to equitable tolling

of the one

‐ year statute of limitations contained in 28 U.S.C.

§ 2255.

Solano asserts that, directly after the sentencing hearing,

he told his trial counsel to file a notice of appeal because he

disagreed with the court’s determination concerning his sen

‐

tence. Solano also asserts that his attorney assured him he

would visit Solano in prison, but never did so and never

filed a notice of appeal. Solano claims he made numerous

attempts to contact trial counsel between November and De

‐

cember 2011, to no avail, and finally wrote to the districtNo. 15

‐ 1290 5

court, asking about the status of his appeal, on January 11,

2013. Solano did not learn that no appeal had been filed until

he received a copy of the docket sheet from the Clerk.

Following an evidentiary hearing, the district court dis

‐

missed Solano’s § 2255 motion as untimely. Solano knew the

facts underlying his two ineffective assistance of counsel

claims at the time of sentencing, the court concluded, and

thus had one year from November 9, 2011—the date on

which the judgment became final—to file a timely motion.

There was no basis for equitable tolling, the district court

concluded, because though Solano initially exercised dili

‐

gence in pursuing his rights, he did not act diligently to de

‐

termine the status of his appeal in the fourteen months im

‐ mediately preceding his April 2013 petition, and no extraor

‐ dinary circumstances prevented timely filing. At the eviden

‐ tiary hearing, the district court cited this court’s decision in

Nunez v. United States

, 546 F.3d 450, 456 (7th Cir. 2008), and

pointed out that “where there is an appeal waiver, the attor

‐

ney can choose not to appeal, even though there has been a

request.” The court nevertheless dismissed the petition on

timeliness grounds.

Before this court, Solano argues that his original § 2255

petition properly challenged the failure to appeal as a Sixth

Amendment violation. Citing 18 U.S.C. § 2255(f)(4), he con

‐

tends that the district court erred in dismissing his petition

because it was filed within one year after he discovered that

his appeal had not been filed. The government contends that

Solano’s petition was properly dismissed as untimely be

‐

cause he failed to show that he acted with diligence to de

‐

termine the status of his appeal.6 No. 15

‐ 1290

II

This court is free to affirm the court’s denial of the motion

“on any grounds found in the record, regardless of the ra

‐

tionale employed by the district court.” United States v. Flo

‐

res

‐ Sandoval

, 94 F.3d 346, 349 (7th Cir. 1996) (citing United

States v. Mustread

, 42 F.3d 1097, 1104 (7th Cir. 1994)). That is

the appropriate course in this case. Solano waived any right

to appeal his sentence in his plea agreement, and thus may

not bring an ineffective assistance of counsel claim for his

attorney’s failure to file an appeal, even one he explicitly re

‐ quested.

As part of a plea agreement, a defendant may validly

waive his right to challenge his conviction and sentence on

direct appeal or collateral review under 28 U.S.C. § 2255.

With limited exceptions, these “waivers are enforceable as a

general rule.” Jones v. United States

, 167 F.3d 1142, 1145 (7th

Cir. 1999). As the district court recognized and the govern

‐

ment argued below, in Nunez

, we held that, once a defendant

has knowingly and voluntarily waived his right to appeal

both in a plea agreement and in court under Rule 11(b), the

Sixth Amendment does not require an attorney to disregard

the waiver by complying with the defendant’s request to file

an appeal. 546 F.3d at 456. In reaching this decision, we

acknowledged that seven other Circuits have reached the

opposite conclusion on this issue. Id. at 453 (citing Cam

‐

pusano v. United States

, 442 F.3d 770, 772–77 (2d Cir. 2006);

United States v. Poindexter

, 492 F.3d 263 (4th Cir. 2007); United

States v. Tapp

, 491 F.3d 263 (5th Cir. 2007); Watson v. United

States

, 493 F.3d 960 (8th Cir. 2007); United States v. Garrett

, 402

F.3d 1262, 1265–67 (10th Cir. 2005); Gomez

‐ Diaz v. United

States

, 433 F.3d 788, 791–94 (11th Cir. 2005)). We explained,No. 15

‐ 1290 7

however, that trial counsel’s responsibilities to the court and

to the client militate against filing an appeal in circumstances

where the client has waived that right. Id. at 455. A lawyer

has a duty to avoid frivolous litigation; more importantly,

the lawyer has a continuing duty to the client to “avoid tak

‐ ing steps that will cost the client the benefit of the plea bar

‐ gain.” Id. Further, in order to establish an ineffective assis

‐

tance claim, a defendant must show both objectively defi

‐

cient performance and prejudice; no such showing can be

made when counsel fails to file an appeal for a defendant

who has validly waived the appeal. Id. at 456.

In Nunez and in other cases, we recognized that an ap

‐ peal waiver does not always foreclose a defendant’s right to

appeal or relieve trial counsel of the responsibility to file an

appeal in every case. The appeal waiver stands or falls with

the plea agreement. United States v. Behrman

, 235 F.3d 1049,

1051 (7th Cir. 2000). Accordingly, a defendant who contends

that the plea agreement, or the appeal waiver contained

within it, was made involuntarily will retain a Sixth

Amendment right to have his lawyer file an appeal on that

ground. Nunez

, 546 F.3d at 454. A defendant may also retain

the right to argue on appeal that his decision to plead guilty

was made without effective assistance of counsel, or that the

court relied on an impermissible factor such as race or im

‐ posed a sentence that exceeds the statutory maximum. Jones

,

167 F.3d at 1144–45. In Nunez we also noted that “waivers of

appeal have different scopes”; thus, a defendant who waives

only the right to appeal his sentence may retain the right to

appeal his conviction. 546 F.3d at 454; see also United States v.

Sines

, 303 F.3d 793, 798 (7th Cir. 2002) (“[T]his court has been

careful to enforce waivers only to the extent of the agree

‐

ment.”) And if the scope of the waiver is unclear, trial coun

‐8 No. 15

‐ 1290

sel can properly file an appeal to seek a court determination

of whether the waiver covers the particular issue. Nunez

, 546

F.3d at 456.

But the exceptions are not available here. Solano does not

assert that this plea agreement or his appeal waiver was in

‐ voluntary or unknowing. Indeed, Solano told both the mag

‐

istrate judge and district court that the plea agreement was

knowing and voluntary and that he understood the implica

‐

tions of the appeal waiver. Nor are there any ambiguities or

limitations in the waiver that would provide Solano with a

right to appeal his conviction or sentence on any ground.

Solano waived his right to appeal his conviction and sen

‐

tence to any court on any ground, including any claim of in

‐

effective assistance of counsel. He also agreed not to contest

his conviction or sentence based on alleged ineffective assis

‐

tance of counsel under 28 U.S.C. § 2255. Nor has Solano sug

‐ gested that the district court relied on impermissible factors

in his sentence or imposed a sentence that exceeds the statu

‐

tory cap.

Solano’s only viable argument, which he made for the

first time at oral argument, is that we should reconsider

Nunez

. We decline to do so. Nunez is appropriately limited to

circumstances in which, as in this case, the defendant’s waiv

‐

er was knowing and voluntary and actually governed the

proposed appeal. Because Solano has not asserted any Sixth

Amendment right in his § 2255 petition, we affirm the dis

‐

trict court’s decision denying the motion.

The judgment of the district court is AFFIRMED.