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[NOT FOR PUBLICATION]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
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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.
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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