12-780-cr
United States v. Rodriguez
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 25th day of July, two thousand fourteen.
PRESENT: GUIDO CALABRESI,
BARRINGTON D. PARKER,
GERARD E. LYNCH,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 12-780-cv
EMILIA RODRIGUEZ,
Defendant - Appellant,
RAMON CAMILO, SEALED VEHICLE #1,
SEALED VEHICLE #2, FAUSTO HINOJSA,
Defendants.
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FOR APPELLANT: Jane S. Meyers, Brooklyn, New York.
FOR APPELLEES: Paul D. Silver, Assistant United States Attorney, for Richard
S. Hartunian, United States Attorney for the Northern District
of New York.
Appeal from the United States District Court for the Northern District of New York
(David N. Hurd, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the case is REMANDED to the district court for proceedings consistent with
this order.
Defendant Emilia Rodriguez, who stands convicted after trial of conspiracy to traffic
in 100 or more grams of heroin, appeals from an amended judgment entered on February 9,
2012, on remand. See United States v. Rodriguez, 531 F. App’x 148 (2d Cir. 2013); United
States v. Sealed Vehicle #1, 440 F. App’x 22 (2d Cir. 2011). That judgment sentences
Rodriguez to a statutorily mandated minimum prison sentence of 60 months, see 21 U.S.C.
§ 841(b)(1)(B), a sentence that is 39 months longer than the prison term imposed by the
original judgment of the district court. Rodriguez, 531 F. App’x at 148-49. We remanded
this matter to the district court again, retaining jurisdiction pursuant to United States v.
Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994), for fact-finding concerning Rodriguez’s claim
that her counsel was constitutionally ineffective in challenging her original judgment of
conviction on appeal. Rodriguez, 531 F. App’x at 150; see also Strickland v. Washington,
466 U.S. 668, 687 (1984); Forbes v. United States, 574 F.3d 101, 106 (2d Cir. 2009)
(applying Strickland to appellate counsel). In particular, we indicated that the district court
should inquire into counsel’s consultation with Rodriguez about pursuing an appeal on her
behalf, and whether the government offered to withdraw its cross-appeal in exchange for
Rodriguez’s withdrawal of her appeal. On remand, after accepting affidavits from
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Rodriguez, her former counsel, and the government, but without holding an evidentiary
hearing, the district court issued an Opinion and Order on October 25, 2013, concluding that
Rodriguez had not satisfied her burden to demonstrate that she was prejudiced by counsel’s
alleged unprofessional errors. We assume the parties’ familiarity with the facts and record
of prior proceedings, which we reference only as necessary to explain our decision. We
review a district court’s decision not to hold an evidentiary hearing for abuse of discretion.
See United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995).
As noted above, on remand, the district court solicited affidavits from Rodriguez, her
former counsel, and the government, but declined to conduct an evidentiary hearing. Based
solely on the affidavits, the court found that although Rodriguez’s counsel filed the notice
of appeal without her authorization, “the [g]overnment would have filed a direct appeal of
Rodriguez’s sentence even if she had not appealed,” and Rodriguez was therefore not
prejudiced by counsel’s conduct. SA58. The court also declined to determine whether the
Assistant United States Attorney had agreed to stipulate to a mutual withdrawal of appeals,
instead concluding that Rodriguez had not shown prejudice because the AUSA was not
authorized to make such a commitment.
Under the circumstances, we believe it was incumbent upon the district court to hold
an evidentiary hearing. The affidavits submitted by Rodriguez, her former attorney, and the
government differ in significant ways, presenting material issues of fact that impede our
review of Rodriguez’s ineffectiveness claim. For example, Rodriguez and her former
attorney offered conflicting accounts of the contact information he had for Rodriguez. The
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district court should have resolved this factual dispute and elicited more detailed information
from the former attorney concerning his attempts to contact Rodriguez after her sentencing.
Additionally, the affidavits of Rodriguez’s former counsel and the government offered
conflicting accounts of whether an AUSA offered to withdraw the government’s appeal in
exchange for the withdrawal of Rodriguez’s appeal. The district court declined to resolve
this factual dispute.
Our prior remand order, however, expressly contemplated that the district court would
develop a factual record pertaining to former counsel’s efforts to consult with Rodriguez
about filing a notice of appeal, and the government’s putative offer to withdraw its appeal.
By failing to hold an evidentiary hearing to resolve factual disputes and elicit greater detail
about the circumstances surrounding Rodriguez’s original appeal, the district court
disregarded our remand order, and consequently exceeded its discretion.1 On remand, the
district court should resolve the factual disputes we have identified, elicit fuller testimony
regarding the government’s decision to pursue its appeal,2 and otherwise create a factual
1
In the district court, Rodriguez’s appellate counsel declined to represent Rodriguez because
counsel is not admitted to practice before the United States District Court for the Northern
District of New York. Nonetheless, appellate counsel initially submitted letters to the district
court requesting that the court appoint other counsel for Rodriguez and hold an evidentiary
hearing. Appellate counsel subsequently informed the district court that she no longer believed
it was necessary for the district court to hold an evidentiary hearing or appoint counsel for
Rodriguez. As far as can be determined, however, appellate counsel was not Rodriguez’s
representative before the district court, and Rodriguez accordingly proceeded pro se. Under the
circumstances, the district court should have made an independent determination as to the
necessity of an evidentiary hearing. We believe the gaps and contradictions in the factual record
demonstrate the necessity of an evidentiary hearing in this case.
2
While the government’s affidavit states that AUSA Silver is “not aware of any evidence that
would substantiate Rodriguez’s claim that the government would not have pursued an appeal if
she had not appealed,” it also states that “the fact that Rodriguez had filed her notice of appeal
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record that is sufficient to permit review of Rodriguez’s ineffectiveness claim. In addition,
we encourage the district court to ask the parties to address what relief, if any, is available
to Rodriguez at this time.
For the foregoing reasons, the case is REMANDED to the district court for
proceedings consistent with this order. This panel retains jurisdiction to hear Rodriguez’s
ineffectiveness claim once the record has been supplemented. See United States v. Leone,
215 F.3d 253, 257 (2d Cir. 2000).3 The mandate shall issue forthwith.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
before the government filed its notice of appeal also was considered,” in “determining whether
to proceed with a government appeal.” SA 57. The district court should elicit further testimony
and information regarding how the government made its decision to appeal, and should resolve
the factual dispute about whether the prosecutor did or did not offer defense counsel an
opportunity for a mutual withdrawal of appeals.
3
We appreciate that the district court’s decision not to hold an evidentiary hearing may have
been motivated by a laudable desire to permit expeditious resolution of Rodriguez’s appeal. We
respectfully invite the district court to again act with celerity in holding an evidentiary hearing,
and the parties to promptly apply to this panel for reinstatement of the appeal upon issuance of
the supplemented record and the district court’s factual findings.
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