Filed: Mar. 02, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 3-2-2006 USA v. Morin Precedential or Non-Precedential: Non-Precedential Docket No. 05-4234 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Morin" (2006). 2006 Decisions. Paper 1486. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1486 This decision is brought to you for free and open access by the Opinions of the United States
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 3-2-2006 USA v. Morin Precedential or Non-Precedential: Non-Precedential Docket No. 05-4234 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Morin" (2006). 2006 Decisions. Paper 1486. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1486 This decision is brought to you for free and open access by the Opinions of the United States C..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-2-2006
USA v. Morin
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4234
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Morin" (2006). 2006 Decisions. Paper 1486.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1486
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
RESUBMITTED BPS-40
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-4234
___________
UNITED STATES OF AMERICA
v.
SHAWN E. MORIN,
Appellant
________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Criminal No. 03-cr-00279)
District Judge: Honorable William L. Standish
_________________
Submitted For Determination of Whether a Certificate of Appealability
Should Issue and Possible Summary Action
Under Third Circuit LAR 27.4 and I.O.P. 10.6
January 6, 2006
Before: RENDELL, AMBRO and GREENBERG, Circuit Judges.
(Filed March 2, 2006)
_____________
OPINION OF THE COURT
_____________
PER CURIAM
On April 14, 2004, Shawn Morin pled guilty to bank robbery. He was
subsequently sentenced to fifty-seven months in prison. Morin did not file a direct
appeal. In June 2005, he filed a motion pursuant to 28 U.S.C. § 2255. Morin alleged that
his counsel told him that he was facing a sentence of only twenty-four to thirty months.
He also claimed that his counsel failed to file a notice of appeal after he requested him to
do so. The District Court denied the § 2255 motion. It determined that Morin was not
prejudiced by any failure to file a notice of appeal because his other claim of ineffective
assistance of counsel was without merit. Morin filed a timely notice of appeal which we
have construed as a request for a certificate of appealability. See Fed. R. App. P.
22(b)(2). On December 8th, pursuant to this Court’s November 30th order, the
government filed a response.
In Solis v. United States, 252 F.3d 289 (3d Cir. 2001), we remanded an appeal
with an identical claim for an evidentiary hearing. “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 Amendment right to counsel was violated by his counsel’s failure
to act.”
Id. at 294. The Supreme Court has noted that “[w]e have long held that a lawyer
who disregards specific instructions from the defendant to file a notice of appeal acts in a
manner that is professionally unreasonable.” Roe v. Flores-Ortega,
528 U.S. 470, 477
(2000) citing Rodriguez v. United States,
395 U.S. 327 (1969). The Court later explained
that if such allegations were true, there was a presumption of prejudice because the
petitioner was deprived of an appellate proceeding altogether.
Id. at 483. The Court also
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noted that it is unfair to expect a pro se litigant to demonstrate that his appeal would have
had merit. Id. at 486.
Because Morin’s allegations present the factual question of whether he requested
his attorney to file a notice of appeal and prejudice is presumed if the allegations are true,
the District Court erred in denying the § 2255 motion without holding an evidentiary
hearing. In its response, the government stated that it does not oppose a limited remand
for reconsideration of the sole claim that counsel was ineffective for failing to file a
notice of appeal. However, given our disposition of that claim, it is not necessary for us
to address Morin’s other claim of ineffective assistance of counsel with respect to the
possible sentence Morin was facing. Solis v. United States, 252 F.3d 289, 295 (3d Cir.
2001) (“Nor must we determine whether Solis’s counsel was ineffective 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 § 2255
petition.”).
Summary action is appropriate if there is no substantial question presented in the
appeal. See Third Circuit LAR 27.4. For the above reasons, we will grant a certificate of
appealability, summarily vacate the District Court’s August 3, 2005, order, and remand
the matter for further proceedings. See Third Circuit I.O.P. 10.6. Morin has filed a
motion for an extension of time to file a reply to the government’s response. Because we
are remanding the matter on both claims, we will deny his motion as moot.
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