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D ock e t 99-5833

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. e du/thir dc ir c uit_2001/124Filed June 5, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-5833

JULIO SOLIS, Appellant

v.

UNITED STATES OF AMERICA

Appeal from the United States District Court For the District of New Jersey

D.C. No.: 98-cv-03643 District Judge: Honorable Garrett E. Br own

Argued: April 4, 2001

Before: SCIRICA, ROSENN, AND GIBSON,* Circuit Judges.

(Filed: June 5, 2001)

For the United States: Robert J. Cleary, Esq., United States Attorney George S. Leone, Esq., Chief, Appeals Division Norman Gross, Esq., Assistant United States Attorney Camden Federal Building and
United States Courthouse 401 Market St., Fourth Floor Camden, NJ 08101-2098

___________________________________________________ ______________

* John R. Gibson, Senior Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation.For Appellant Julio Solis:

Thomas F. Dorn, Jr., Esq. c/o Sinins & Bross, Esqs. 201 Washington St. Newark, NJ 07102

OPINION OF THE COURT

ROSENN, Circuit Judge.

A request by a petitioner under 28 U.S.C. S 2255 fo r an evidentiary hearing under the District Court's disc r etionary power is not unusual and not often granted. However , in this appeal, the petitioner presents a rar e situat ion where he claims the right to a mandatory evidentiary hear ing.

In September 1996, a federal grand jury in the Dist rict of New Jersey indicted Julio Solis on a one-count indi ctment charging him and four co-conspirators with conspiri ng to distribute more than 5 kilograms of cocaine in viol ation of 21 U.S.C. S 841(a) and 21 U.S.C. S 946. The defenda nt entered into a plea agreement. The defendant claims that after sentencing, he requested his counsel to appea l but his attorney failed to take any action. Eight months af ter sentencing, the defendant filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. S 2255. The Dist rict Court, certifying that there was no probable cause for an appeal, denied the motion without a hearing. Solisf iled a pro se notice of appeal. We vacate the sentence and remand for a hearing as required by 28 U.S.C.S 2255.

I.

In August of 1996, a man known as "Yayo" hired Juli o Solis ("Solis") to transport 16 kilograms of cocain e from Houston, Texas to Rhode Island, where Solis lived a t the time. At Yayo's direction, Solis contacted Allen Wh ite ("White"), the owner of the Carthage T rucking Comp any in Houston, and directed White to receive the cocaine at a
warehouse in Houston.1 White then hired his friend Ronald

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1. Solis had previously worked for White at Carthag e Trucking.

2Sutton, a truck driver, to transport the cocaine fr om

Houston to Newark, New Jersey.

White instructed Sutton to rent a car and drive it to Carthage Trucking. Sutton complied, and White loade d the
cocaine into the rental car. White told Sutton to d rive the
car to Newark and contact "Julio" when he arrived t here. He also instructed Sutton to collect $11,300 fr om the persons who received the cocaine, to keep a portion for himself as payment, to pay some to Julio to r epay an outstanding debt, and to wire the balance to White in

Houston.

Sutton left Houston for Newark in a rental car carr ying the cocaine. On August 29, 1996, he was pulled over by the Louisiana State Police for driving erratically. The y searched the car and found 16 kilograms of cocaine in the sp are tire compartment of the trunk. They summoned the Drug Enforcement Administration ("DEA"). Sutton agreed t o cooperate with the DEA, who arranged to airlift Sut ton and the rental car to Newark for a controlled delivery of the drugs.

On the way to Newark airport, Sutton placed a monit ored telephone call to White informing him of his pendin g arrival in New Jersey as planned. Apparently, White r elaye d this information to Solis, who arranged for two other me n from Rhode Island, John Arboleda and Juan Velez, to meet Sutton in New Jersey. The DEA agents, after monitor ing Sutton's transfer of the drugs to Arboleda and V el ez, arrested Arboleda and Velez. While under arrest, Ar boleda and Velez received signals on an electr onic pager indicating a telephone number later identified as Solis's. In July, 1997, Solis was arrested.

In September, 1997, Solis entered into a counseled guilty plea agreement with the Government. The agreement provided that under 21 U.S.C. S 841(b), Solis's cri me carried a mandatory minimum sentence of ten years imprisonment and a maximum sentence of life imprisonment. It also stated that the Government ma de no representations regarding the sentence Solis would ultimately receive. In the plea agreement, the Gove rnment

3made the following conditional promise r egarding a socalled "Safety Valve" provision: 2

If at the time of sentencing the United Stat es is
satisfied that the five enumerated character istics set forth in 18 U.S.S.G. S 3553(f)(1)-(5) apply to Julio Solis and his commission of the charged offense, t he United States will make such a representation to th e sentencing court and will recommend that the sentencing court impose a sentence pursuant to the applicable Sentencing Guidelines without reg ar d to any statutory minimum sentence.

No stipulation was made regarding Solis's criminal history score, and the Government r eserved the rig ht to argue the effect of any non-stipulated facts to the sentencing court. The prosecution also r eserved th e right to correct any stipulation if it conflicted with any c redible evidence subsequently obtained. Finally, the Gover nment represented that it would inform the sentencing cou rt of any information it had, favorable or unfavorable, t hat was relevant to sentencing.

At his plea colloquy Solis assured the Court that n o one had made him any assurances or promises r egarding the sentence the court would ultimately impose and that he was satisfied with his attorney's services. The pro secutor reiterated the conditional nature of the Safety Val ve representation, stating that the Safety V alve woul d apply only to Solis if, at the time of sentencing, allfiv e factors enumerated in S 3553(f) were met. Solis assured the court that the Government had accurately described the pl ea agreement. The court accepted Solis's plea.

During its investigation of Solis's background the Probation Office discovered that, in 1995, he had b een convicted of petty theft in a state court in Housto n, Texas. The state court sentenced him to a $200 fine and 18 0 days

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2. The "Safety Valve" in 18 U.S.C.S 3553(f) provide s that statutory minimum sentences do not apply to defendants who me et five enumerated requirements. Relevant her e is the requ irement that "the
defendant does not have more than 1 criminal histor y point, as determined under the sentencing guidelines . .. ." 18 U.S.C. S 3553(f)(1).

4probation. See PSR P 48-49. That conviction account ed for

one criminal history point. Solis paid part of thef ine but not in full. Texas issued a probation violation war rant against him, which warrant was still active when th e PSR was written. See PSR P 50. Ther efore, Solis commit ted the instant offense while a probation violation warrant was outstanding against him. Accordingly, the District Court added two additional criminal history points pursua nt to U.S.S.G. S 4A1.1(d), Application Note 4, giving Sol is a total criminal history score of three. See PSR P 50-51. This score rendered Solis ineligible for the Safety V alve. Se e 18 U.S.C. S 3553(f)(1). Accordingly, the District Court impos ed the statutory minimum sentence of ten years imprisonmen t.

On his motion to vacate his sentence, Solis alleged that he was entitled to relief because 1) his lawyer was ineffective for, inter alia, failing to file a dire ct appeal as requested; 2) the District Court misapplied the Sen tencing Guidelines; and 3) the Government breached the plea
agreement.

By order dated December 22, 1999 a panel of this Co urt construed the notice of appeal as a request for a c ertificate of appealability and referred the question of wheth er such a certificate should issue to this merits panel. Se e Appx. 16. The panel appointed counsel to repr esent Solis and directed the parties to brief the following issues, in addition to any other issues Solis wished to raise: 1) wheth er trial counsel's failure to file a requested appeal consti tutes per se ineffective assistance of counsel; 2) whether 28 U.S.C. S 2255 makes an evidentiary hearing mandatory when a prisoner alleges that he asked trial counsel tofile a direct appeal and counsel failed to do so; and 3) whether aS 2255 petitioner who alleges that trial counsel was inef fective for failing to file a direct appeal is required to stat e the grounds on which he would have appealed if counsel had file d the requested appeal.

II.

The District Court had subject matter jurisdiction under 28 U.S.C. S 2255. This Court has jurisdiction under 28
U.S.C. S 2253 to decide whether to issue a certific ate of

5appealability and, if such a certificate is issued, under

S 2253 and S 2255 to resolve the appeal. We review for abuse of discretion the dismissal of a petition bro ught
under 28 U.S.C. S 2255. See United States v. Friedl and, 83 F.3d 1531, 1538 (3d Cir. 1996).

A certificate of appealability may be granted"only if the applicant has made a substantial showing of the den ial of a constitutional right." 28 U.S.C. S 2253(c)(2). A defendant claiming ineffective assistance of counsel in viola tion of the
Sixth Amendment of the U.S. Constitution must showf irst that counsel's representation was objectively unrea sonable, and second, that counsel's deficient perfor mance w as prejudicial. See Roe v. Flores-Ortega, 528 U.S. 470 , 476-77 (2000) (citing Strickland v. Washington , 466 U.S. 668 (1984)).

With regard to objectively r easonable representati on, counsel has "a constitutionally-imposed duty to con sult with the defendant about an appeal when ther e is r eason to think either (1) that a rational defendant would wa nt to appeal (for example, because there are nonfriviolou s grounds for appeal), or (2) that this particular de fendant reasonably demonstrated to counsel that he was inte rested in appealing." Flores-Ortega, 528 U.S. at 480 (2000 ). In cases where the defendant pleaded guilty, "the cour t must
consider such factors as whether the defendant r ec eived the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all a ppeal rights." Id. Regarding prejudice, the Supreme Court held that "when counsel's constitutionally deficient per formance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling h im to an appeal." Flores-Ortega, 528 U.S. at 484. Prejudice is presumed from counsel's failure tofile a notice of appeal when so requested by a client. See, e.g. , Kitchen v. United States, 227 F.3d 1014, 1020-21 (7th Cir . 2000).

In this case, Solis claims that he directed his att orney to file an appeal, but that his attorney failed to com ply. On its face, this creates a question of fact whether Solis directed his attorney to file an appeal. If he did, then Sol is's Sixth

6Amendment right to counsel was violated by his coun sel's

failure to act. See Flores-Ortega , 528 U.S. at 477

.

28 U.S.C. S 2255 provides that:

A prisoner in custody under sentence of a co urt established by Act of Congress . . . may mov e the court which imposed the sentence to vacate, set as ide or
correct the sentence. Unless the motion and thefiles and records of the case conclusively show th at the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, d etermine the issues and make findings of fact and con clusions of law with respect thereto. . . . (emphasis ad ded).

Solis maintains that he instructed his attor ney to take an appeal, see Reply Br. 3, but no dir ect appeal was taken. Accordingly, 28 U.S.C. S 2255 requir es that Solis should have received an evidentiary hearing befor e the Di strict Court to determine whether he requested or reasonab ly demonstrated to counsel that he desired to appeal. It is irrelevant whether the Government or Solis requeste d the hearing because S 2255 requires the District Court to hold a hearing sua sponte when, as here, the files and r ecords do not show conclusively that Solis was not entitle d to
relief.

The Government admits that "the District Court did not undertake the kind of credibility deter mination th at is required when there is an allegation that the direc t appeal rights have not been protected by counsel." Atty. G ross, for Government on Tape of Oral Argument. The Government argues that even if Solis had received a direct app eal, he would be in no better position than he is befor e u s now because the motions panel's order allowed him to ra ise "any other issues." Indeed, in the instant appeal, Solis presents claims normally raised on direct appeal (challengin g his sentence and his plea bargain), in addition to thos e normally raised in a S 2255 petition (ineffective a ssistance of counsel). Of course, the Government contends tha t all of Solis's issues are meritless, and that we should de cide them against him even if the District Court err ed in not holding an evidentiary hearing.

7We reject the Government's position. Section 2255

requires that a hearing precede any District Court determination of a disputed issue of fact concernin g petitioner's entitlement to relief. Her e, it is un clear whether Solis requested or was interested in pursuing an ap peal; the District Court erred in denying Solis a hearing . Solis's ability to raise "any" arguments her e does not sub stitute for his right to a nunc pro tunc dir ect appeal if, aft er a hearing,
the District Court concludes that Solis is entitled to a remedy for the violation of his rights as set forth in FloresOrtega. A new opportunity to directly appeal is the remedy for petitioner's alleged ineffective assistance of counsel. See United States v. West, 240 F.3d 456, 459 (5th Cir. 2001). We will not presume that Solis raised every possibl e argument in his brief before us simply because he c ould have done so. Adoption of the Government's position may cut corners in the name of efficiency but it may be at the expense of important procedural rights.

The District Court, denying Solis's petition withou t a hearing, explained that Solis was obligated to rais e any and all of his direct appeal issues in his S 2255 petit ion. See Appx. 12 n.6. We believe that this is not a correct statement of the law if Solis actually requested his counsel to file an appeal. The District Court should have held a heari ng to
determine the truthfulness of this claim. The Distr ict Court's solution to the issue -- requiring consolid ation of direct and collateral appeals -- is not an adequate substitute and is unsupported by statute and case l aw.

If Solis is correct in his claim that he r equested his lawyer to appeal, counsel may have been inef fectiv e for failing to file the appeal. We ther efore hold that when a defendant is convicted of a crime and alleges that his lawyer failed to appeal the conviction, and ther e is a potential factual dispute on this issue, the defend ant is entitled to a hearing before the District Court to prove that he made the request and that the lawyer failed to h onor it. However, a defendant would not be entitled to a hea ring if his allegations were contradicted conclusively by t he record, or if the allegations were patently frivolous. See 28 U.S.C. S 2255; United States v. Laetividal-Gonzalez, 939 F .2d 1455, 1465 (11th Cir. 1991) (quoting Holmes v. United Sta tes, 876

8F.2d 1545, 1553 (11th Cir. 1989)), cert. denied, 50 3 U.S.

912 (1992), and overruled on other grounds, United States v. Giltner, 972 F.2d 1559, 1562 (11th Cir .1992). I f on
remand the District Court determines that Solis's c ounsel was ineffective, then Solis must be given the oppor tunity nunc pro tunc to brief his direct appeal in full. P art of that brief may include his claim that he would not have entered a plea bargain knowing that the safety valve for th e mandatory minimum was blocked. We need not r each t he merits of Solis's direct appeal at this junctur e, as he was not obligated to raise his direct appeal issues in his S 2255 petition. See McHale v. United States, 175 F .3d 11 5, 119 (2d Cir. 1999) ("petitioner need not demonstrate t hat, but for the ineffectiveness of counsel, such an appeal would have succeeded or even would have had merit.") Nor must
we determine whether Solis's counsel was inef fecti ve for any other reason. Our holding is limited to the iss ue of Solis's entitlement to a direct appeal. The other i neffective assistance claims, if still viable, may be raised i n a future S 2255 petition.

III.

Accordingly, the order denying Petitioner's motion to
vacate or set aside his sentence will be vacated an d the case remanded for a hearing pursuant to 28 U.S.C. S 2255.3 All other issues raised in Petitioner's S 2255 peti tion will be denied without prejudice. In the event the Petition er presents another S 2255 petition, it shall be deeme d his first filed petition.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

___________________________________________________ ______________

3. We note, as did the U.S. Court of Appeals for th e Fourth Circuit in a
similar case that resulted in a vacatur and r emand for a S 2255 hearing, that Flores-Ortega was decided after the District C ourt rendered its decision. See United States v. Witherspoon , 231 F. 3d 923, 927 n.6 (4th Cir. 2000).

9