In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1290
ERIK SOLANO,
Petitioner‐Appellant,
v.
UNITED STATES OF AMERICA,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:13‐cv‐327 — Jon E. DeGuilio, Judge.
____________________
ARGUED DECEMBER 9, 2015 — DECIDED FEBRUARY 5, 2016
____________________
Before EASTERBROOK and HAMILTON, Circuit Judges, and
PALLMEYER, District Judge.*
PALLMEYER, District Judge. Erik Solano appeals from an
order of the district judge dismissing his 28 U.S.C. § 2255
motion to vacate his sentence. Solano, who waived the right
to appeal from his sentence, nevertheless asserts that trial
* Of the United States District Court for the Northern District of Illi‐
nois, sitting by designation.
2 No. 15‐1290
counsel’s failure to file an appeal at his request constitutes
ineffective assistance in violation of the Sixth Amendment.
The district court dismissed his petition as untimely, but we
are free to affirm on any ground presented in the record.
United States v. Flores‐Sandoval, 94 F.3d 346, 349 (7th Cir. 1996)
(citing United States v. Mustread, 42 F.3d 1097, 1104 (7th Cir.
1994)). As the government argued below, the Sixth Amend‐
ment does not require an attorney to accede to a defendant’s
request to file an appeal where the defendant has knowingly
and voluntarily waived that right as part of a valid plea
agreement. Accordingly, we affirm the dismissal of Solano’s
§ 2255 petition.
I
In April 2011, a grand jury indicted Erik Solano on two
counts of distributing cocaine and one count of conspiring to
obtain and distribute marijuana, in violation of 21 U.S.C.
§ 841. Solano pleaded guilty pursuant to an agreement in
which the government agreed to dismiss one of the cocaine
counts and recommend a reduction of the sentencing guide‐
line range to reflect Solano’s acceptance of responsibility.
Solano’s written plea agreement included a waiver of Sola‐
no’s right to appeal his conviction, sentence, or any restitu‐
tion order on any ground, including any claim of ineffective
assistance of counsel. He also agreed not to contest the man‐
ner in which his conviction, sentence, or any restitution or‐
der was determined or imposed on any ground, including
any claim—on direct appeal or by way of a post‐conviction
petition—that he had received ineffective assistance of coun‐
sel.
At the change of plea hearing, on June 8, 2011, the magis‐
trate judge explained the rights that Solano was giving up by
No. 15‐1290 3
pleading guilty. The magistrate judge also reviewed particu‐
lar provisions contained in the plea agreement, including
Solano’s appeal waiver:
THE COURT: So what you are doing here in
this particular paragraph with
those particular sentences is
you are giving up that right to
appeal. So, as it says, you will
not be able to appeal your sen‐
tence, your conviction or any
restitution order or the manner
in which it was determined to
any Court on any ground. Do
you understand that?
DEFENDANT: Yes, Your Honor.
THE COURT: All right. That’s important.
At the conclusion of the hearing, the magistrate judge
found that Solano had knowingly waived his rights and that
his plea was voluntary.1 At a sentencing hearing on October
1 At the time of Solano’s plea hearing, this court had not yet decided
United States v. Harden, which held that, pursuant to the Federal Magis‐
trates Act, United States Magistrate Judges are not permitted to accept
guilty pleas in felony cases. 758 F.3d 886, 888 (7th Cir. 2014). Although
this court has not yet decided whether Harden applies retroactively in
collateral proceedings, Solano has waived this argument because his
§ 2255 petition does not challenge the magistrate’s acceptance of his
guilty plea, and Solano has not raised this issue on appeal. See Valenzuela
v. United States, 261 F.3d 694, 700 n.2 (7th Cir. 2001) (stating that by fail‐
ing to raise an issue in a § 2255 petition, a petitioner waives that issue);
United States v. Barnes, 660 F.3d 1000, 1006 (7th Cir. 2011) (“[A]ny issue
that could have been raised on appeal but was not is waived[.]”).
4 No. 15‐1290
21, 2011, the district court accepted the plea and imposed a
sentence of 168 months, the bottom end of the guideline
range, to be followed by three years of supervised release.
As the hearing concluded, the court reminded Solano, and
Solano acknowledged, that he had waived the right to ap‐
peal his conviction or sentence as part of his plea agreement.
Judgment was entered on October 26, 2011, and became final
on November 9, 2011, the expiration date for filing a notice
of appeal. See FED. R. APP. P. 4(b)(1)(A).
Solano did not appeal. Approximately two and a half
years later, however, on April 15, 2013, Solano filed a pro se
§ 2255 motion to vacate his sentence, asserting two claims of
ineffective assistance of counsel: (1) that trial counsel was
ineffective in negotiating the plea agreement; and (2) that
trial counsel was ineffective in advocating for Solano at sen‐
tencing. Solano wrote that the grounds for his § 2255 petition
had not been previously presented to a federal court “due to
the ineffective assistance of counsel and his failure to file my
appeal like he said he would.” Solano contended that he
“just became aware that [his] attorney did not file [his] direct
appeal,” and urged that he was entitled to equitable tolling
of the one‐year statute of limitations contained in 28 U.S.C.
§ 2255.
Solano asserts that, directly after the sentencing hearing,
he told his trial counsel to file a notice of appeal because he
disagreed with the court’s determination concerning his sen‐
tence. Solano also asserts that his attorney assured him he
would visit Solano in prison, but never did so and never
filed a notice of appeal. Solano claims he made numerous
attempts to contact trial counsel between November and De‐
cember 2011, to no avail, and finally wrote to the district
No. 15‐1290 5
court, asking about the status of his appeal, on January 11,
2013. Solano did not learn that no appeal had been filed until
he received a copy of the docket sheet from the Clerk.
Following an evidentiary hearing, the district court dis‐
missed Solano’s § 2255 motion as untimely. Solano knew the
facts underlying his two ineffective assistance of counsel
claims at the time of sentencing, the court concluded, and
thus had one year from November 9, 2011—the date on
which the judgment became final—to file a timely motion.
There was no basis for equitable tolling, the district court
concluded, because though Solano initially exercised dili‐
gence in pursuing his rights, he did not act diligently to de‐
termine the status of his appeal in the fourteen months im‐
mediately preceding his April 2013 petition, and no extraor‐
dinary circumstances prevented timely filing. At the eviden‐
tiary hearing, the district court cited this court’s decision in
Nunez v. United States, 546 F.3d 450, 456 (7th Cir. 2008), and
pointed out that “where there is an appeal waiver, the attor‐
ney can choose not to appeal, even though there has been a
request.” The court nevertheless dismissed the petition on
timeliness grounds.
Before this court, Solano argues that his original § 2255
petition properly challenged the failure to appeal as a Sixth
Amendment violation. Citing 18 U.S.C. § 2255(f)(4), he con‐
tends that the district court erred in dismissing his petition
because it was filed within one year after he discovered that
his appeal had not been filed. The government contends that
Solano’s petition was properly dismissed as untimely be‐
cause he failed to show that he acted with diligence to de‐
termine the status of his appeal.
6 No. 15‐1290
II
This court is free to affirm the court’s denial of the motion
“on any grounds found in the record, regardless of the ra‐
tionale employed by the district court.” United States v. Flo‐
res‐Sandoval, 94 F.3d 346, 349 (7th Cir. 1996) (citing United
States v. Mustread, 42 F.3d 1097, 1104 (7th Cir. 1994)). That is
the appropriate course in this case. Solano waived any right
to appeal his sentence in his plea agreement, and thus may
not bring an ineffective assistance of counsel claim for his
attorney’s failure to file an appeal, even one he explicitly re‐
quested.
As part of a plea agreement, a defendant may validly
waive his right to challenge his conviction and sentence on
direct appeal or collateral review under 28 U.S.C. § 2255.
With limited exceptions, these “waivers are enforceable as a
general rule.” Jones v. United States, 167 F.3d 1142, 1145 (7th
Cir. 1999). As the district court recognized and the govern‐
ment argued below, in Nunez, we held that, once a defendant
has knowingly and voluntarily waived his right to appeal
both in a plea agreement and in court under Rule 11(b), the
Sixth Amendment does not require an attorney to disregard
the waiver by complying with the defendant’s request to file
an appeal. 546 F.3d at 456. In reaching this decision, we
acknowledged that seven other Circuits have reached the
opposite conclusion on this issue. Id. at 453 (citing Cam‐
pusano v. United States, 442 F.3d 770, 772–77 (2d Cir. 2006);
United States v. Poindexter, 492 F.3d 263 (4th Cir. 2007); United
States v. Tapp, 491 F.3d 263 (5th Cir. 2007); Watson v. United
States, 493 F.3d 960 (8th Cir. 2007); United States v. Garrett, 402
F.3d 1262, 1265–67 (10th Cir. 2005); Gomez‐Diaz v. United
States, 433 F.3d 788, 791–94 (11th Cir. 2005)). We explained,
No. 15‐1290 7
however, that trial counsel’s responsibilities to the court and
to the client militate against filing an appeal in circumstances
where the client has waived that right. Id. at 455. A lawyer
has a duty to avoid frivolous litigation; more importantly,
the lawyer has a continuing duty to the client to “avoid tak‐
ing steps that will cost the client the benefit of the plea bar‐
gain.” Id. Further, in order to establish an ineffective assis‐
tance claim, a defendant must show both objectively defi‐
cient performance and prejudice; no such showing can be
made when counsel fails to file an appeal for a defendant
who has validly waived the appeal. Id. at 456.
In Nunez and in other cases, we recognized that an ap‐
peal waiver does not always foreclose a defendant’s right to
appeal or relieve trial counsel of the responsibility to file an
appeal in every case. The appeal waiver stands or falls with
the plea agreement. United States v. Behrman, 235 F.3d 1049,
1051 (7th Cir. 2000). Accordingly, a defendant who contends
that the plea agreement, or the appeal waiver contained
within it, was made involuntarily will retain a Sixth
Amendment right to have his lawyer file an appeal on that
ground. Nunez, 546 F.3d at 454. A defendant may also retain
the right to argue on appeal that his decision to plead guilty
was made without effective assistance of counsel, or that the
court relied on an impermissible factor such as race or im‐
posed a sentence that exceeds the statutory maximum. Jones,
167 F.3d at 1144–45. In Nunez we also noted that “waivers of
appeal have different scopes”; thus, a defendant who waives
only the right to appeal his sentence may retain the right to
appeal his conviction. 546 F.3d at 454; see also United States v.
Sines, 303 F.3d 793, 798 (7th Cir. 2002) (“[T]his court has been
careful to enforce waivers only to the extent of the agree‐
ment.”) And if the scope of the waiver is unclear, trial coun‐
8 No. 15‐1290
sel can properly file an appeal to seek a court determination
of whether the waiver covers the particular issue. Nunez, 546
F.3d at 456.
But the exceptions are not available here. Solano does not
assert that this plea agreement or his appeal waiver was in‐
voluntary or unknowing. Indeed, Solano told both the mag‐
istrate judge and district court that the plea agreement was
knowing and voluntary and that he understood the implica‐
tions of the appeal waiver. Nor are there any ambiguities or
limitations in the waiver that would provide Solano with a
right to appeal his conviction or sentence on any ground.
Solano waived his right to appeal his conviction and sen‐
tence to any court on any ground, including any claim of in‐
effective assistance of counsel. He also agreed not to contest
his conviction or sentence based on alleged ineffective assis‐
tance of counsel under 28 U.S.C. § 2255. Nor has Solano sug‐
gested that the district court relied on impermissible factors
in his sentence or imposed a sentence that exceeds the statu‐
tory cap.
Solano’s only viable argument, which he made for the
first time at oral argument, is that we should reconsider
Nunez. We decline to do so. Nunez is appropriately limited to
circumstances in which, as in this case, the defendant’s waiv‐
er was knowing and voluntary and actually governed the
proposed appeal. Because Solano has not asserted any Sixth
Amendment right in his § 2255 petition, we affirm the dis‐
trict court’s decision denying the motion.
The judgment of the district court is AFFIRMED.