Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2708
HECTOR ESCUDERO-APONTE,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Joseph C. Laws, Jr. on Memorandum of Law in Support of
Application for Certificate of Appealability for petitioner.
May 22, 2003
Per Curiam. Petitioner Hector Escudero-Aponte ultimately
seeks to appeal from the district court's rejection on the merits
of his ineffective assistance of counsel claims, presented in a
motion pursuant to 28 U.S.C. § 2255. However, his present request
is for a certificate of appealability ("COA") to appeal from the
denial of his Fed.R.Civ.P. 60(b)(6) motion. Specifically,
petitioner sought and was denied permission under Fed.R.App.P.
4(a)(6) to reopen the time to appeal from denial of his § 2255
motion. Petitioner filed a motion for reconsideration of that
denial pursuant to Fed.R.Civ.P. 60(b)(6). Petitioner is presently
seeking to appeal from the denial of that motion to reconsider.
I. The COA Standard
Under 28 U.S.C. § 2253(c), a COA may issue only upon the
"substantial showing of the denial of a constitutional right."
Although petitioner is currently seeking a COA to appeal from a
procedural ruling, the district court's denial of his § 2255 motion
rejected his constitutional claims on the merits. Therefore, §
2253(c) requires petitioner to "demonstrate that reasonable jurists
would find the district court's assessment of the constitutional
claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 485
(2000).1
1
Because petitioner clearly cannot satisfy the merits prong
of the COA standard, we need not address the procedural prong.
That prong is complicated in this case by the two levels of
procedural rulings, under Fed.R.Civ.P. 60(b) and Fed.R.App.P.
4(a)(6). In the Rule 4(a)(6) context, the Second Circuit has
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II. Ineffective Assistance of Counsel Claims
"A defendant claiming ineffective assistance of counsel
must show (1) that counsel's representation 'fell below an
objective standard of reasonableness,' and (2) that counsel's
deficient performance prejudiced the defendant." Roe v. Flores-
Ortega, 528 U.S. 470, 476-77 (2000) (quoting Strickland v.
Washington, 466 U.S. 668 (1984)). That test applies to
petitioner's claim that counsel was ineffective for failing to file
a notice of appeal. Id. at 477. It also applies to petitioner's
claim of ineffective assistance based upon counsel's failure to
file a motion under former Fed.R.Crim.P. 35(b). See United States
v. Nino, 878 F.2d 101, 104 (3d Cir. 1989).
Where, as in this case, the district court dismisses §
2255 claims without holding an evidentiary hearing, "we take as
true the sworn allegations of fact set forth in the petition unless
those allegations are merely conclusory, contradicted by the
record, or inherently incredible." Ellis v. United States, 313 F.3d
636, 641 (1st Cir. 2002). Petitioner's § 2255 motion and
accompanying statement allege that immediately after sentencing,
petitioner and members of his family asked counsel to file a motion
for reconsideration of the sentence. It is further alleged by
developed a standard for satisfying § 2253(c), which might be
adaptable to the slightly different procedural context in which
this appeal arises. See Eltayib v. United States, 294 F.3d 347,
400 (2d Cir. 2002). However, we need not resolve that issue here.
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petitioner that counsel responded that in his view such a motion
would not be successful. The motion was not filed. Although it is
alleged that counsel failed to file a notice of appeal, there is no
specific allegation that petitioner requested counsel to file an
appeal, or even that petitioner desired to appeal his sentence.
A. Failure to File Rule 35(b) Motion
Petitioner pled guilty to a crime committed in 1986,
before the applicable date of the Sentencing Reform Act (November
1, 1987).2 Therefore, the former version of Fed.R.Crim.P. 35(b)
applied, which provided as follows:
(b) Reduction of Sentence. A motion to reduce
a sentence may be made, or the court may
reduce a sentence without motion, within 120
days after the sentence is imposed or
probation is revoked, or within 120 days after
receipt by the court of a mandate issued upon
affirmance of the judgment or dismissal of the
appeal.
Former Rule 35(b). "[F]ormer Rule 35(b) conferred virtually
unfettered discretion on sentencing courts." United States v.
Angiulo, 57 F.3d 38, 41 n.3 (1st Cir. 1995).
"No court has held that failure to file . . . a motion
[pursuant to former Rule 35(b)] automatically constitutes
ineffective assistance of counsel." Shraiar v. United States, 736
2
The 1987 amendment limited the ground for Rule 35(b) relief
to "substantial assistance in the investigation or prosecution of
another person who has committed an offense," added a "government
motion" requirement and extended the time for filing such motion.
See United States v. McAndrews, 12 F.3d 273, 279 (1st Cir. 1993).
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F.2d 817, 818 (1st Cir. 1984). Courts have held that "where
counsel's promise to file such a motion is followed by counsel's
failure to file it, the court should look further into the matter."
Id.; see United States v. Golden, 854 F.3d 31, 32 (3d Cir. 1988);
United States v. Ackerman, 619 F.2d 285, 288 (3d Cir. 1980).
Petitioner has not alleged that his counsel promised to file a Rule
35(b) motion. To the contrary, he alleged that his attorney
responded to his request by stating his opinion that such a motion
would not be successful. The failure to file a Rule 35(b) motion
under these circumstances does not fall below an objective standard
of reasonableness. See Shraiar, 736 F.2d at 818.
Even if petitioner had alleged facts sufficient to
satisfy the first prong of the Strickland test, he has not alleged
facts to support a finding of prejudice. Judge Fusté, who presided
at petitioner's sentencing, determined in his denial of the § 2255
motion that petitioner failed to "show[] that there was a
reasonable probability that his sentence would have been reduced
had Attorney Mendez-Lebron filed a timely Rule 35(b) motion." The
court gave detailed reasons why petitioner was in a "different
position from his co-defendants" and stated that the reduction of
their sentences was no indication that petitioner's Rule 35(b)
motion would have been successful. Accordingly, petitioner has
failed to show that he was prejudiced by counsel's failure to file
a Rule 35(b) motion. See United States v. Nino, 878 F.2d 101, 105
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(3d Cir. 1989)(holding that second Strickland prong was not
satisfied where "district judge who considered the habeas corpus
motion also was the sentencing judge to whom a Rule 35(b) motion
would have been submitted, and he conclusively stated in his
opinion that had a Rule 35(b) motion been submitted to him, he
would not have granted it"); Voytik v. United States, 778 F.2d
1306, 1310 (8th Cir. 1985)(same). It does not appear that jurists
of reason would find the district court's summary dismissal of this
ineffective assistance of counsel claim to be debatable or wrong.3
B. Failure to File Notice of Appeal
Petitioner's § 2255 motion and accompanying statement
fail to allege that he specifically requested counsel to file a
notice of appeal. The Supreme Court has applied the following
standard to such claims of ineffective assistance of counsel:
In those cases where the defendant
neither instructs counsel to file an appeal
nor asks that an appeal not be taken, we
believe the question whether counsel has
performed deficiently by not filing a notice
of appeal is best answered by first asking a
separate, but antecedent, question: whether
3
Some courts have held that because failure to file a Rule
35(b) motion does not call into question the judgment and sentence,
§ 2255 cannot supply a remedy. See United States v. Hill, 826 F.2d
507, 509 (7th Cir. 1987). Anticipating that the district court
might so rule, petitioner sought alternative relief pursuant to the
writ of coram nobis under the All Writs Act, 28 U.S.C. § 1651
(1982). See Golden, 854 F.2d at 32. Because neither party has
challenged the district court's assumption that § 2255 could supply
a remedy if ineffective assistance of counsel had been established,
the question of whether the writ of coram nobis could provide an
alternative remedy is moot.
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counsel in fact consulted with the defendant
about an appeal. We employ the term "consult"
to convey a specific meaning - advising the
defendant about the advantages and
disadvantages of taking an appeal, and making
a reasonable effort to discover the
defendant's wishes.
Flores-Ortega, 528 U.S. at 478-79.
In the response by petitioner's former counsel to the
district court's order that counsel give reasons for failing to
file a notice of appeal and Rule 35(b) motion, counsel stated that
1) in his professional judgment there were no grounds for a
successful appeal, and 2) that it would be better to try to
negotiate a plea agreement in the parallel state proceedings.
Counsel further stated that petitioner "agreed with this course of
action, and never instructed the undersigned to file an appeal in
the federal case." The district court, relying upon this statement
by counsel, found that "Petitioner and his counsel made a conscious
decision to pursue state-court negotiations in lieu of an appeal."
Accordingly, the district court found that the failure to file a
notice of appeal did not constitute ineffective assistance of
counsel.
Counsel's statement did not contradict any specific
allegations by petitioner in his § 2255 motion or his accompanying
statement. Therefore, the district court did not err in relying
upon that statement to determine whether the failure to file a
notice of appeal fell below an objective standard of
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reasonableness. Based upon the uncontradicted statement of the
attorney, it appears that counsel "consulted" with petitioner about
taking an appeal, within the meaning of Flores-Ortega, supra.
Under such circumstances, "[c]ounsel performs in a professionally
unreasonable manner only by failing to follow the defendant's
express instructions with respect to an appeal." Flores-Ortega, 528
U.S. at 478. Petitioner has not alleged that counsel failed to
follow his express instructions to file an appeal. Therefore, we
conclude that jurists of reason would not find the district court's
assessment of this ineffective assistance of counsel claim
debatable or wrong.
The request for a COA is denied. Petitioner's appeal
from the denial of his Rule 60(b)(6) motion is terminated.
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