                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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Recommended Citation
"USA v. Morin" (2006). 2006 Decisions. Paper 1486.
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                                                               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                                                                 NOT PRECEDENTIAL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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