
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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
