                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-2008

Velazquez v. Grace
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1292




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Recommended Citation
"Velazquez v. Grace" (2008). 2008 Decisions. Paper 1254.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1254


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                                                                 NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                     No. 06-1292


                          LUIS M. FELIX VELAZQUEZ,

                                                     Appellant

                                            v.

               JAMES GRACE, Superintendent, SCI-Huntingdon, PA;
               DISTRICT ATTORNEY OF LEBANON COUNTY, PA;
                      PA STATE ATTORNEY GENERAL



                     Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                        (D.C. Civil Action No. 04-cv-02348)
                     District Judge: Honorable John E. Jones, III


                                Argued April 18, 2008

         Before: SCIRICA, Chief Judge, AMBRO and FISHER, Circuit Judges

                              (Opinion filed May 8, 2008)

Diana Lynn Stavroulakis, Esquire (Argued)
262 Elm Court
Pittsburgh, PA 15237

      Counsel for Appellant

Robert W. McAteer, Esquire (Argued)
Office of the District Attorney
400 South Eighth Street, Room 11
Municipal Building
Lebanon, PA 17042

       Counsel for Appellee


                                        OPINION


AMBRO, Circuit Judge

       Luis M. Felix Velazquez appeals the District Court’s denial of his petition for a

writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 1291, and vacate that

denial for the reasons stated below.

                                             I.

       Velazquez was charged with a number of sexual offenses in March 2002. He was

tried and convicted in October 2002 in the Lebanon County, Pennsylvania, Court of

Common Pleas. Charles T. Jones, Jr. represented Velazquez at trial. After the verdict

was issued, John R. Kelsey was appointed to represent Velazquez.

       In January 2003, the trial court sentenced Velazquez to a term of incarceration of

13 ½ to 27 years. He instructed Kelsey to file a direct appeal and a collateral attack under

the Post Conviction Relief Act (PCRA), 42 Pa. C.S. § 9541, et seq. Kelsey failed to file a

direct appeal or a petition under the PCRA and the deadlines for doing so passed.1 The



       1
       The deadline for filing a direct appeal was 30 days from imposition of the
sentence. Pa. R. App. P. 903(c)(3); 42 Pa. C.S. § 5571. The deadline for filing a petition
under the PCRA was one year from when the conviction became final (i.e., one year after
the deadline for filing a direct appeal). 42 Pa. C.S. § 9545(b).

                                             2
one-year deadline for filing a federal habeas petition, 28 U.S.C. § 2244(d)(1), also passed

before Kelsey informed Velazquez in April 2004 (15 months after sentencing) that he had

not filed a petition under the PCRA.

       In October 2004, Velazquez, proceeding pro se, filed a petition for writ of habeas

corpus in the Middle District of Pennsylvania. He asserted that he had been deprived of

his Sixth Amendment right to counsel by Kelsey’s failure to file a direct appeal or for

PCRA relief. The District Court denied the petition. It concluded that: (1) the petition

should be entertained because the interests of justice required that his failure to exhaust

state remedies be excused and that Velazquez’s failure to file the petition timely be

excused because of equitable tolling; and (2) the petition should be denied because

Velazquez had failed to show that he had been prejudiced by Kelsey’s failure to file an

appeal.

       We issued a certificate of appealability in November 2006 and directed that

counsel be sought to represent Velazquez.

                                             II.

       We agree with the District Court that the doctrine of equitable tolling permits us to

consider this otherwise untimely petition. Moreover, the Commonwealth did not include

any argument regarding equitable tolling in its brief, so it has waived that issue. We also

reject any suggestion that Velazquez, who took all reasonable steps to present his claims

to the appropriate courts, “sat on his rights” and thereby failed to exhaust his state

remedies. Accordingly, we turn to the merits of his claim.

                                              3
                                            III.

       In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court interpreted

Strickland v. Washington, 466 U.S. 668 (1984), as requiring that a defense counsel

consult with a defendant about whether he or she wishes to appeal a conviction. If that

consultation occurs and the defendant does not express a wish to appeal, counsel is not

per se professionally unreasonable for not filing an appeal. Flores-Ortega, 528 U.S. at

478. The Court explained, however, that if a criminal defendant expressed a wish to

appeal, a defense counsel is professionally unreasonable if he or she fails to do so. See id.

at 477 (“We 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.”).

       We applied that precedent in United States v. Shedrick, 493 F.3d 292 (3d Cir.

2007), and held that the failure to file an appeal of an upward sentencing departure was

ineffective assistance of counsel when the criminal defendant’s counsel was told that the

defendant wished him to file an appeal.

       The Commonwealth nonetheless suggests that the District Court correctly rejected

the ineffective assistance argument because Velazquez had not shown he had meritorious

claims. But neither Shedrick nor Flores-Ortega requires such a showing. Instead,

Flores-Ortega held that a petitioner only must show that “counsel’s constitutionally

deficient performance deprive[d him] of an appeal that he otherwise would have taken.”

Flores-Ortega, 528 U.S. at 484. Here, if Kelsey had not been constitutionally deficient

(i.e., by not following Velazquez’s instructions), an appeal would have been taken.

                                             4
       In fact, the asked-for addition of the requirement that the appeal not taken have

merit contradicts Rodriquez v. United States, 395 U.S. 327 (1969), which the Supreme

Court cited approvingly in Flores-Ortega. See Flores-Ortega, 528 U.S. at 477, 485.

Rodriquez involved the failure of counsel to file a direct appeal after a conviction in

federal court. The Court rejected a Ninth Circuit rule that would “require the sentencing

court to screen out supposedly unmeritorious appeals.” Rodriquez, 395 U.S. at 330. It

explained:

       Those whose right to appeal has been frustrated should be treated exactly
       like any other appellants; they should not be given an additional hurdle to
       clear just because their rights were violated at some earlier stage in the
       proceedings. Accordingly, we hold that the courts below erred in rejecting
       petitioner’s application for relief because of his failure to specify the points
       he would raise were his right to appeal reinstated.

Id. The Court interpreted Rodriquez in Flores-Ortega as holding that “by instructing

counsel to perfect an appeal, [the defendant] objectively indicated his intent to appeal and

was entitled to a new appeal without any further showing.” Flores-Ortega, 528 U.S. at

485.

       Though it is tempting to do so, we should not inquire into the merit of a

prospective appeal. The loss of a requested direct appeal is prejudice enough (i.e.,

sufficient to satisfy Strickland as construed by Flores-Ortega).

       The Commonwealth correctly asserts that, if successful on this appeal, Velazquez

should receive the remedy of reinstatement of his direct appeal rights in the Pennsylvania

courts (with appropriate representation). We ask that the District Court enter an


                                              5
appropriate order on remand.

                                      *****

      We vacate and remand the judgment of the District Court.




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