2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-5-2001

Solis v. United States

Precedential or Non-Precedential:

Docket 99-5833

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Recommended Citation

"Solis v. United States" (2001). 2001 Decisions. Paper 124.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/124
Filed 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 for an 

evidentiary hearing under the District Court's discr etionary 

power is not unusual and not often granted. However , in 

this appeal, the petitioner presents a rar e situation where 

he claims the right to a mandatory evidentiary hearing. 

In September 1996, a federal grand jury in the District of 

New Jersey indicted Julio Solis on a one-count indictment 

charging him and four co-conspirators with conspiring to 

distribute more than 5 kilograms of cocaine in violation of 

21 U.S.C. S 841(a) and 21 U.S.C. S 946. The defendant 

entered into a plea agreement. The defendant claims that 

after sentencing, he requested his counsel to appeal but his 

attorney failed to take any action. Eight months after 

sentencing, the defendant filed a pro se motion to vacate 

his sentence pursuant to 28 U.S.C. S 2255. The District 

Court, certifying that there was no probable cause for an 

appeal, denied the motion without a hearing. Solisfiled 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 Julio 

Solis ("Solis") to transport 16 kilograms of cocaine from 

Houston, Texas to Rhode Island, where Solis lived at the 

time. At Yayo's direction, Solis contacted Allen White 

("White"), the owner of the Carthage T rucking Company in 

Houston, and directed White to receive the cocaine at a 

warehouse in Houston.1 White then hired his friend Ronald 

_________________________________________________________________ 

1. Solis had previously worked for White at Carthage Trucking. 

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Sutton, a truck driver, to transport the cocaine from 

Houston to Newark, New Jersey. 

White instructed Sutton to rent a car and drive it to 

Carthage Trucking. Sutton complied, and White loaded the 

cocaine into the rental car. White told Sutton to drive the 

car to Newark and contact "Julio" when he arrived there. 

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 carrying 

the cocaine. On August 29, 1996, he was pulled over by the 

Louisiana State Police for driving erratically. They searched 

the car and found 16 kilograms of cocaine in the spare tire 

compartment of the trunk. They summoned the Drug 

Enforcement Administration ("DEA"). Sutton agreed to 

cooperate with the DEA, who arranged to airlift Sutton and 

the rental car to Newark for a controlled delivery of the 

drugs. 

On the way to Newark airport, Sutton placed a monitored 

telephone call to White informing him of his pending arrival 

in New Jersey as planned. Apparently, White r elayed this 

information to Solis, who arranged for two other men from 

Rhode Island, John Arboleda and Juan Velez, to meet

Sutton in New Jersey. The DEA agents, after monitoring 

Sutton's transfer of the drugs to Arboleda and V elez, 

arrested Arboleda and Velez. While under arrest, Arboleda 

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 crime 

carried a mandatory minimum sentence of ten years 

imprisonment and a maximum sentence of life 

imprisonment. It also stated that the Government made no 

representations regarding the sentence Solis would 

ultimately receive. In the plea agreement, the Government 

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

 If at the time of sentencing the United States is 

 satisfied that the five enumerated characteristics set 

 forth in 18 U.S.S.G. S 3553(f)(1)-(5) apply to Julio Solis 

 and his commission of the charged offense, the United 

 States will make such a representation to the 

 sentencing court and will recommend that the

 sentencing court impose a sentence pursuant to the 

 applicable Sentencing Guidelines without regar d to any 

 statutory minimum sentence. 

No stipulation was made regarding Solis's criminal 

history score, and the Government r eserved the right to 

argue the effect of any non-stipulated facts to the

sentencing court. The prosecution also r eserved the right to 

correct any stipulation if it conflicted with any credible 

evidence subsequently obtained. Finally, the Gover nment 

represented that it would inform the sentencing court of 

any information it had, favorable or unfavorable, that was 

relevant to sentencing. 

At his plea colloquy Solis assured the Court that no 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 prosecutor 

reiterated the conditional nature of the Safety Valve 

representation, stating that the Safety V alve would apply 

only to Solis if, at the time of sentencing, allfive factors 

enumerated in S 3553(f) were met. Solis assured the court 

that the Government had accurately described the plea 

agreement. The court accepted Solis's plea. 

During its investigation of Solis's background the 

Probation Office discovered that, in 1995, he had been 

convicted of petty theft in a state court in Houston, Texas. 

The state court sentenced him to a $200 fine and 180 days 

_________________________________________________________________ 

2. The "Safety Valve" in 18 U.S.C.S 3553(f) provides that statutory 

minimum sentences do not apply to defendants who meet five 

enumerated requirements. Relevant her e is the requirement that "the 

defendant does not have more than 1 criminal history point, as 

determined under the sentencing guidelines . .. ." 18 U.S.C. S 3553(f)(1). 

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probation. See PSR P 48-49. That conviction accounted for 

one criminal history point. Solis paid part of thefine but 

not in full. Texas issued a probation violation warrant 

against him, which warrant was still active when the PSR 

was written. See PSR P 50. Ther efore, Solis committed the 

instant offense while a probation violation warrant was 

outstanding against him. Accordingly, the District Court 

added two additional criminal history points pursuant to 

U.S.S.G. S 4A1.1(d), Application Note 4, giving Solis a total 

criminal history score of three. See PSR P 50-51. This score 

rendered Solis ineligible for the Safety V alve. See 18 U.S.C. 

S 3553(f)(1). Accordingly, the District Court imposed the 

statutory minimum sentence of ten years imprisonment. 

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 direct appeal as 

requested; 2) the District Court misapplied the Sentencing 

Guidelines; and 3) the Government breached the plea

agreement. 

By order dated December 22, 1999 a panel of this Court 

construed the notice of appeal as a request for a certificate 

of appealability and referred the question of whether such 

a certificate should issue to this merits panel. See 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) whether trial 

counsel's failure to file a requested appeal constitutes 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 state the grounds 

on which he would have appealed if counsel had filed 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 certificate of 

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appealability 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 brought 

under 28 U.S.C. S 2255. See United States v. Friedland, 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 denial of 

a constitutional right." 28 U.S.C. S 2253(c)(2). A defendant 

claiming ineffective assistance of counsel in violation of the 

Sixth Amendment of the U.S. Constitution must showfirst 

that counsel's representation was objectively unreasonable, 

and second, that counsel's deficient perfor mance was 

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 representation, 

counsel has "a constitutionally-imposed duty to consult 

with the defendant about an appeal when ther e is reason to 

think either (1) that a rational defendant would want to 

appeal (for example, because there are nonfriviolous 

grounds for appeal), or (2) that this particular defendant 

reasonably demonstrated to counsel that he was interested 

in appealing." Flores-Ortega, 528 U.S. at 480 (2000). In 

cases where the defendant pleaded guilty, "the court must 

consider such factors as whether the defendant r eceived 

the sentence bargained for as part of the plea and whether 

the plea expressly reserved or waived some or all appeal 

rights." Id. Regarding prejudice, the Supreme Court held 

that "when counsel's constitutionally deficient performance 

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 him 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 attorney to 

file an appeal, but that his attorney failed to comply. On its 

face, this creates a question of fact whether Solis directed 

his attorney to file an appeal. If he did, then Solis's Sixth 

 6 
Amendment right to counsel was violated by his counsel'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 court 

 established by Act of Congress . . . may move the court 

 which imposed the sentence to vacate, set aside or 

 correct the sentence. Unless the motion and thefiles 

 and records of the case conclusively show that 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, determine 

 the issues and make findings of fact and conclusions of 

 law with respect thereto. . . . (emphasis added). 

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 District 

Court to determine whether he requested or reasonably 

demonstrated to counsel that he desired to appeal. It is 

irrelevant whether the Government or Solis requested the 

hearing because S 2255 requires the District Court to hold 

a hearing sua sponte when, as here, the files and records 

do not show conclusively that Solis was not entitled to 

relief. 

The Government admits that "the District Court did not 

undertake the kind of credibility deter mination that is 

required when there is an allegation that the direct appeal 

rights have not been protected by counsel." Atty. Gross, for 

Government on Tape of Oral Argument. The Government

argues that even if Solis had received a direct appeal, he 

would be in no better position than he is befor e us now 

because the motions panel's order allowed him to raise "any 

other issues." Indeed, in the instant appeal, Solis presents 

claims normally raised on direct appeal (challenging his 

sentence and his plea bargain), in addition to those 

normally raised in a S 2255 petition (ineffective assistance 

of counsel). Of course, the Government contends that all of 

Solis's issues are meritless, and that we should decide 

them against him even if the District Court err ed in not 

holding an evidentiary hearing. 

 7 
We reject the Government's position. Section 2255 

requires that a hearing precede any District Court 

determination of a disputed issue of fact concerning 

petitioner's entitlement to relief. Her e, it is unclear whether 

Solis requested or was interested in pursuing an appeal; 

the District Court erred in denying Solis a hearing. Solis's 

ability to raise "any" arguments her e does not substitute for 

his right to a nunc pro tunc dir ect appeal if, after 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 possible 

argument in his brief before us simply because he could 

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 without a 

hearing, explained that Solis was obligated to raise any and 

all of his direct appeal issues in his S 2255 petition. 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 hearing to 

determine the truthfulness of this claim. The District 

Court's solution to the issue -- requiring consolidation of 

direct and collateral appeals -- is not an adequate

substitute and is unsupported by statute and case law. 

If Solis is correct in his claim that he r equested his 

lawyer to appeal, counsel may have been inef fective 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 defendant is 

entitled to a hearing before the District Court to prove that 

he made the request and that the lawyer failed to honor it. 

However, a defendant would not be entitled to a hearing if 

his allegations were contradicted conclusively by the 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 States, 876 

 8 
F.2d 1545, 1553 (11th Cir. 1989)), cert. denied, 503 U.S. 

912 (1992), and overruled on other grounds, United States 

v. Giltner, 972 F.2d 1559, 1562 (11th Cir .1992). If on 

remand the District Court determines that Solis's counsel 

was ineffective, then Solis must be given the opportunity 

nunc pro tunc to brief his direct appeal in full. Part of that 

brief may include his claim that he would not have entered 

a plea bargain knowing that the safety valve for the 

mandatory minimum was blocked. We need not r each the 

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 115, 119 

(2d Cir. 1999) ("petitioner need not demonstrate that, 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 fective for 

any other reason. Our holding is limited to the issue of 

Solis's entitlement to a direct appeal. The other ineffective 

assistance claims, if still viable, may be raised in a future 

S 2255 petition. 

III. 

Accordingly, the order denying Petitioner's motion to 

vacate or set aside his sentence will be vacated and the 

case remanded for a hearing pursuant to 28 U.S.C. S 2255.3 

All other issues raised in Petitioner's S 2255 petition will be 

denied without prejudice. In the event the Petitioner 

presents another S 2255 petition, it shall be deemed 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 the 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 Court rendered its 

decision. See United States v. Witherspoon , 231 F.3d 923, 927 n.6 (4th 

Cir. 2000). 

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