USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1524
CARLOS ALBERTO BERRIO-CALLEJAS,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
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Before
Torruella, Chief Judge,
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Stahl and Lynch, Circuit Judges.
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Carlos Alberto Berrio-Callejas on brief pro se.
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Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa,
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Senior Litigation Counsel, and Nelson Perez-Sosa, Assistant United
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States Attorney, on brief for appellee.
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NOVEMBER 12, 1997
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Per Curiam. In this appeal from the district court's summary
Per Curiam
denial of his petition for a writ of habeas corpus under 28 U.S.C.
2255, Carlos Berrio-Callejas asserts, inter alia, that the court erred
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in implicitly concluding that the petition "and records of the case
conclusively show that [he] is entitled to no relief," see id., on his
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claim of ineffective assistance of counsel. Specifically, petitioner
contends that the record does not conclusively refute his allegation
that trial counsel failed to perfect his notice of appeal, despite his
instructions that she do so. See Bonneau v. United States, 961 F.2d
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17, 23 (1st Cir. 1992). We agree. The court had no authority to
credit petitioner's counsel's letter over petitioner's, cf. Castillo
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v. United States, 34 F.3d 443, 445-46 (7th Cir. 1994), as it
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apparently did in resolving this issue against him, see Callejas v.
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United States, 917 F. Supp. 125, 131-32 (D. Puerto Rico 1996). In
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addition, the court's summary of counsel's letter (which was written
in Spanish) suggests that the letter does not, in fact, refute
petitioner's claim. See id. at 131.
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We therefore vacate and remand with instructions that the court
(1) appoint counsel for petitioner if he qualifies for such an
appointment under 18 U.S.C. 3006A(g); and (2) hold an evidentiary
hearing as to whether, and when, petitioner instructed counsel to file
a notice of appeal, see U.S.C. 2255. Should petitioner wish to
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renew his alternative argument, made below but not on appeal, that
counsel was constitutionally ineffective in failing either to ask him
whether he wanted to appeal or to inform him of his appeal rights, see
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2
Baker v. Kaiser, 929 F.2d 1495, 1499 (10th Cir. 1991) (counsel has
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constitutional duties along these lines); but see Castellanos v.
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United States, 26 F.3d 717, 719-20 (7th Cir. 1994) (appearing to place
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onus on defendant to request an appeal); United States v. Peak, 992
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F.2d 39, 41-42 (4th Cir. 1993) (similar), the court should both
entertain it (if the court resolves the remanded issue against
petitioner) and make appropriate findings and rulings on it.1
In light of how long this petition has been pending, the court
should appoint counsel forthwith and endeavor to hold the evidentiary
hearing as soon as possible.
Vacated and remanded.
Vacated and remanded.
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1We do not now address the remaining issues raised by the petition, as
those issues can be raised on direct appeal should the district court
reinstate petitioner's right to take such an appeal. See Bonneau, 961
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F.2d at 23. In the event the district court does not reinstate
petitioner's right to file a direct appeal, petitioner may renew his
appeal of the court's rulings on these issues on collateral review.
3
