

                        [NOT FOR PUBLICATION]

                    UNITED STATES COURT OF APPEALS
                        FOR THE FIRST CIRCUIT
                                             

No. 96-1524

                   CARLOS ALBERTO BERRIO-CALLEJAS,

                        Plaintiff, Appellant,

                                  v.

                      UNITED STATES OF AMERICA,

                         Defendant, Appellee.

                                             

             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF PUERTO RICO

            [Hon. Jaime Pieras, Jr., U.S. District Judge]                                                                

                                             

                                Before

                        Torruella, Chief Judge,                                                      
                   Stahl and Lynch, Circuit Judges.                                                          

                                             

    Carlos Alberto Berrio-Callejas on brief pro se.                                          
    Guillermo Gil, United  States Attorney,  Jose A.  Quiles-Espinosa,                                                                             
Senior Litigation  Counsel,  and Nelson  Perez-Sosa, Assistant  United                                                           
States Attorney, on brief for appellee.

                                             

                          NOVEMBER 12, 1997
                                             

    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                                                        

in implicitly  concluding that the  petition "and records of  the case

conclusively show that [he] is entitled to no relief," see id., on his                                                                      

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                                                                    

17,  23 (1st Cir.  1992).  We  agree.  The  court had  no authority to

credit petitioner's  counsel's letter over petitioner's,  cf. Castillo                                                                              

v.  United  States,  34  F.3d  443,  445-46  (7th Cir.  1994),  as  it                          

apparently did  in resolving this  issue against him, see  Callejas v.                                                                           

United States,  917 F. Supp.  125, 131-32 (D.  Puerto Rico 1996).   In                     

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.                                    

    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                                 

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                                                                              

                                  2

Baker  v. Kaiser, 929  F.2d 1495, 1499  (10th Cir.  1991) (counsel has                        

constitutional  duties  along  these lines);  but  see  Castellanos v.                                                                           

United States, 26 F.3d 717, 719-20 (7th Cir. 1994) (appearing to place                     

onus on  defendant to request  an appeal); United States  v. Peak, 992                                                                         

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.

                                                

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                                                                         
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
