11-4812
Padin v. United States

                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                                SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 18th day of April, two thousand thirteen.

PRESENT:  AMALYA L. KEARSE,
          DENNY CHIN,
                    Circuit Judges,
          JANET C. HALL,
                    District Judge.*
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FLORENCIO PADIN,
                         Petitioner-Appellant,

                         -v.-                                11-4812

UNITED STATES OF AMERICA,
                    Respondent-Appellee.

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FOR PETITIONER-APPELLANT:           Florencio Padin, pro se,
                                    Rochester, Minnesota.



      *
          The Honorable Janet C. Hall, of the United States
District Court for the District of Connecticut, sitting by
designation.
FOR RESPONDENT-APPELLEE:       Monica J. Richards, Joseph J.
                               Karaszewski, Assistant United
                               States Attorneys, for William J.
                               Hochul, Jr., United States
                               Attorney for the Western District
                               of New York, Buffalo, New York.

            Appeal from the United States District Court for the

Western District of New York (Siragusa, J.).

            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court is

AFFIRMED.

            Petitioner-appellant Florencio Padin, proceeding pro

se, appeals the district court's decision and order dated

October 26, 2011, denying his motion to vacate, set aside or

correct his sentence pursuant to 28 U.S.C. § 2255.     We granted a

certificate of appealability on the following issue:    "whether

the district court should have conducted a hearing in light of

the conflicting affidavits presented to the district court on

whether petitioner directed his attorney to file an appeal."       We

assume the parties' familiarity with the underlying facts, the

procedural history of the case, and the issues presented for

review.

            In reviewing a district court's denial of relief under

28 U.S.C. § 2255, we review findings of fact for clear error and

conclusions of law de novo.    See Scanio v. United States, 37


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F.3d 858, 859 (2d Cir. 1994).    We review a district court's

denial of an evidentiary hearing under 28 U.S.C. § 2255(b) for

abuse of discretion.   See Chang v. United States, 250 F.3d 79,

85-86 (2d Cir. 2001); see also Puglisi v. United States, 586

F.3d 209, 215 (2d Cir. 2009) ("[W]here the judge who tried the

case holds a limited hearing to decide a generic claim, the

determination of whether the hearing was sufficient is reviewed

for an abuse of discretion.").

         In his § 2255 motion, Padin alleged that his counsel

rendered ineffective assistance by failing to file a notice of

appeal when he was asked to do so.      See Roe v. Flores-Ortega,

528 U.S. 470, 477 (2000) ("[A] lawyer who disregards specific

instructions from the defendant to file a notice of appeal acts

in a manner that is professionally unreasonable."); accord

Campusano v. United States, 442 F.3d 770, 773 (2d Cir. 2006).

In opposition to Padin's motion, the government submitted an

affidavit of defense counsel explicitly stating that:     (1) prior

to Padin's guilty plea, he discussed with Padin the appeal

waiver contained in the proposed plea agreement; (2) he

explained to Padin that "if he entered the plea and was

thereafter sentenced in accordance with the terms of the written

plea agreement that he would be waiving his right to appeal any

component of his sentence which fell within or was less than the
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sentencing range for imprisonment"; and (3) "[a]t no time during

[counsel's] representation of Mr. Padin did he request, or

direct, that a notice of appeal be filed, or ask that an appeal

be taken."   Aff. of Felix V. Lapine ¶¶ 2-3, United States v.

Padin, No. 6:03-CR-6044 (W.D.N.Y. Jan. 14, 2008), ECF No. 370-5.

Subsequently, Padin submitted an affidavit asserting that "[a]t

sentencing, the District Court advised the defendant that

defendant had 'Ten Days' to file a Notice of Appeal.    After

sentencing the defendant told that defense Attorney Mr. Felix V.

Lapine that defendant wanted to appeal the sentence."    Aff. of

Florencio Padin ¶ 3, United States v. Padin, No. 6:03-CR-6044

(W.D.N.Y. Feb. 11, 2008), ECF No. 372.   Padin also submitted an

affidavit from his wife, stating that after Padin was sentenced,

she "went to the law office of Attorney Felix V. Lapine to

discuss, what could be done about his sentence.   I asked

Attorney Felix V. Lapine about an appeal, and Attorney Felix V.

Lapine gave me all of my husband's legal papers and put me out

of his office."   Aff. of Nereida Padin ¶ 2, United States v.

Padin, No. 6:03-CR-6044 (W.D.N.Y. Feb. 11, 2008), ECF No. 373.

         The district court declined to hold a full-blown

testimonial hearing, and denied the motion on the basis of the

written affidavits, Padin's plea agreement, the plea and

sentencing transcripts, and the court's own observations of
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defense counsel's diligent representation of Padin.    See Padin

v. United States, Nos. 07-CV-6381, 03-CR-6044, 2011 U.S. Dist.

LEXIS 123823, at *6-9 (W.D.N.Y. Oct. 26, 2011).   The district

court concluded that it was not "plausible that Lapine . . .

simply ignored [a] request [by Padin] that a notice of appeal be

filed."   Id. at *9.

          After review of the record in this case, we conclude

that the district court acted within its discretion in declining

to hold a full-blown testimonial hearing on Padin's § 2255

motion.   See, e.g., Chang, 250 F.3d at 86 (explaining that a

district court may satisfy the requirements of § 2255 by

"us[ing] methods . . . to expand the record without conducting a

full-blown testimonial hearing"); Raysor v. United States, 647

F.3d 491, 494 (2d Cir. 2011) ("It is within the district court's

discretion to determine the scope and nature of a hearing.").

In light of the detailed affidavit of defense counsel, the

transcripts of the proceedings, the district court's

observations of Padin and his interactions with counsel, and the

district court's careful factual analysis, we conclude that

there was a sufficient evidentiary record to permit the district

court to reject, without a full testimonial hearing, Padin's

claim that he asked his counsel to file a notice of appeal on

his behalf.   See Chang, 250 F.3d at 85-86.
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          Further, even where a defendant does not ask his

attorney to file an appeal, the attorney has a constitutionally

imposed duty to consult with the defendant about whether he

wants to file an appeal if "there is reason to think either (1)

that a rational defendant would want to appeal . . . , or (2)

that this particular defendant reasonably demonstrated to

counsel that he was interested in appealing."   Roe, 528 U.S. at

480.   In determining whether a rational defendant would want to

appeal or whether the defendant reasonably demonstrated an

interest in appealing, a court must consider all the relevant

factors, including whether the conviction followed a trial or a

guilty plea, whether the defendant received the sentence

bargained for as part of a plea, and whether the plea expressly

reserved or waived some or all appeal rights.   Id.

          Here, Padin entered a guilty plea, he received a

sentence at the low end of the Guidelines range he agreed to,

and he waived his right to appeal a sentence within or below

that range.   Accordingly, we conclude that the district court

did not err in holding that defense counsel did not render

constitutionally defective assistance by failing to file a

notice of appeal.




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         We have considered Padin's remaining arguments and

conclude that they lack merit.   Accordingly, we AFFIRM the order

of the district court.

                             FOR THE COURT:
                             Catherine O'Hagan Wolfe, Clerk




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