                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             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Precedential or Non-Precedential: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.
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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.

                               2
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 so-
called "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).

                               4
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

                               5
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 Flores-
Ortega. 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).

                               9
