dissenting:
The Court holds that a Rule 32(c)(5) violation necessitates a remand for resen-tencing de novo when the government cannot prove by clear and convincing evidence that a section 2255 petitioner otherwise knew of his right to appeal. For this reason, the Court i*emands for a hearing to determine whether the petitioner in this case had knowledge of his appellate rights.
Although the Court asserts that a sentencing court’s failure to inform a defendant of his right to appeal is subject to a harmless error analysis, the Court’s holding in this case demonstrates otherwise. Rather than requiring the petitioner show “harm” or “prejudice” before granting collateral relief, the Court holds that the deprivation of the right to appeal, without more, is “prejudice” sufficient for success on appeal. I cannot support this position and thus, respectfully dissent.
Before the Supreme Court’s decision in Peguero v. United States, - U.S. -, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) this Circuit enforced a per se error rule remanding in almost all cases, except in cases where the defendant already knew of his appellate rights or voluntarily waived them. Peguero rejected this per se error rule, and required prejudice. It is indeed true, as the majority of this Court recognizes, that the issue post-Peguero is what constitutes “prejudice.” Here, the Court, citing Justice O’Connor’s concurrence in Peguero, merely applied a modified per se error test and found prejudice in the loss of the right to appeal.1 I do not agree that the Court’s definition of prejudice accurately reflects habeas law.
Section 2255 provides in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255 (1994). Therefore, a petitioner may rely on § 2255 only to correct a defect in sentencing which raises constitutional issues, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice. See, e.g., Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); see also Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir.1996) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir.1995)). These are the only established inquiries to identify and define the existence of prejudice meriting relief under § 2255. A failure to advise a *57defendant to appeal is neither a jurisdictional error, an error of constitutional magnitude, nor has it been found to be a fundamental defect. Accordingly, there is no prejudice in this case and no relief is merited.
In fact, this Circuit has found that:
[Ejrrors in sentencing procedure are cognizable under § 2255 only if the petitioner establishes that the violation constituted a constitutional or jurisdictional error, United States v. Timmreck, 441 U.S. 780, 783, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (citing Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)), or by showing that the error resulted in a complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure. Id., 441 U.S. at 784, 99 S.Ct. 2085 (quoting Hill, 368 U.S. at 428, 82 S.Ct. 468).
Femia v. United States, 47 F.3d 519, 525 (2d Cir.1995) (quotation marks and parallel citations omitted) (holding lack of actual prejudice supplies a fully adequate basis for the district court’s sua sponte dismissal of a petition raising a Rule 32(c)(3)(D) violation).
As the panel recognizes, it is well-settled that a convicted criminal has no constitutional right to an appeal. See Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The right to appeal is statutory. See id.; see also 18 U.S.C. § 3742 (1988). None of the parties dispute that this case does not involve a jurisdictional or a constitutional claim, and that Soto’s sentence does not exceed the maximum authorized by law. Neither this Court nor any of the parties argue that Soto’s case fits into any of the expressly delineated categories. Nevertheless, the Court’s definition of prejudice (the mere deprivation of a federal right) necessarily forces a Rule 32(c) error, which involves an oversight of criminal procedure, into the category of errors involving “fundamental defects” and “miscarriages of justice.” Although the Court does not explicitly so hold, this is the only way to interpret the Court’s decision. I do not find a fit.
The Court acknowledges that in this case, Soto does not raise any constitutional or jurisdictional issues. In fact, based on these grounds, the Court implies that the certificate of appealability (“COA”) issued in this case without the requisite showing of the denial of a constitutional right. Nevertheless, the Court determined that even if the district court erroneously issued the COA, relief may be granted.
The COA requirement is designed to prevent judicial resources from being squandered by searching for the “merits” of meritless appeals. I agree with my colleagues that an improvidently issued COA confers jurisdiction to review the denial of a habeas petition. However, it is noteworthy that the showing required for obtaining a COA is lower than that required to prevail on the merits. Compare Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (a certificate of probable cause, which allowed a petitioner to proceed on appeal before enactment of the AEDPA, may be issued whenever reasonable jurists could differ as to whether there has been a denial of a constitutional right-petitioner need not show he could prevail on the merits), and 28 U.S.C. § 2253, with 28 U.S.C. § 2255. Logic therefore dictates that in cases where a COA is issued in error, only under rare circumstances and only after petitioner meets a great burden, can the Court actually grant relief. Soto clearly does not raise the denial of a constitutional right. For this reason, a COA should not have been issued. In my view, this strongly militates against the granting of relief on appeal even though we have the jurisdiction to hear the case. In fact, we should invoke our jurisdiction to deny the appeal on the merits.
Recent cases providing relief to petitioners because of loss of a right to appeal are starkly distinguishable from Soto’s case and do not support the Court’s holding that the deprivation of the statutory right *58to appeal, by itself with nothing more, is sufficient to merit collateral relief. For example, in McHale v. United States, 175 F.3d 115 (2d Cir.1999) the panel, of which I was a part, presumed prejudice and granted collateral relief to a petitioner who established a Sixth Amendment violation when his attorney failed to perfect a properly filed appeal. The Court did not remand for resentencing but rather recalled its mandate dismissing the direct appeal.
In another case, Restrepo v. Kelly, 178 F.3d 634 (2d Cir.1999), the defendant unambiguously expressed his desire to appeal his conviction and asked his attorney on several occasions for assurance that his appeal was in progress. The attorney fraudulently represented to the defendant that he filed the appeal. The Court, dealing exclusively with the constitutional ineffective assistance of counsel claim, held:
[I]f there has been a denial of the constitutional right to counsel on appeal, and not merely a flaw in counsel’s performance, the defect is not subject to the cause-and-prejudice test established by Strickland v. Washington, because prejudice resulting from the denial of counsel is to be presumed.
Restrepo, at 641 (emphasis added).
Although this Court refers to Rodriquez v. United States, for support, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969), Rodriquez is also inapposite. In that case as well, the petitioner alleged that his retained counsel had fraudulently deprived him of his right to appeal. Further, the petitioner in that case attempted to make a motion after sentencing requesting leave to proceed in forma pauperis. At that point, the clerk of the court should have filed a notice of appeal. There are no such allegations here. Soto’s case does not raise a Sixth Amendment claim, or for that matter, any claim at all. Soto did not contest the validity of his plea, the sentence he received, nor does he attack the quality of his representation. There is also no indication or allegation that Soto even would have appealed within the required time limit. What is clear, however, is that Soto wishes to take advantage of the safety valve provisions that were passed quite some time after the 10 day time limit to appeal has passed. The district court has already rejected Soto’s argument that the safety valve provisions can be applied retroactively and Soto did not appeal the district court’s decision. See Soto v. United States, No. CV-96-0296, 1996 WL 497144, 1996 U.S. Dist. LEXIS 20139 (E.D.N.Y. Aug. 20, 1996). Rather than preventing litigation, this Court’s remand for resentencing de novo creates a loophole allowing defendants who have not been actually prejudiced in any manner the opportunity to use judicial resources to attempt to relitigate the merits of their claims and to try to raise new ones. This may give the petitioner a form of relief larger in scope than he would have had if he filed a timely appeal, and allow petitioners raising frivolous claims a second bite at the apple. I cannot condone throwing the floodgates open to future litigation of this type.
Even constitutional errors are reviewed for actual prejudice2 to the petitioner (usually by requiring that petitioners establish the existence of meritorious claims). Generally, this means that petitioner must prove, or at least allege, that the outcome would have been different had the error not occurred. See, e.g., Morales v. United States, 143 F.3d 94, 96 (2d Cir.1998) (holding that prejudice resulting from deficient representation is determined by many circumstances, including *59“the variable merits and prospects on appeal, especially one from a sentence imposed by a plea.”); see also Brecht v. Abrahamson, 507 U.S. 619, 622, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (reviewing government’s unconstitutional use of petitioner’s post-Miranda silence for a substantial and injurious effect on the jury’s verdict). I cannot imagine that we would place a higher burden on a petitioner raising an undisputed constitutional error, than on a petitioner raising clearly non-constitutional violations of federal statutes and of procedural rules. When the petitioner raises a mere procedural claim, therefore, we should not be hard-pressed to give him a voice when others with weightier claims are not entitled to one.
This result-oriented definition of prejudice makes sense especially in instances where, as in this case, the defendant pleads guilty, is sentenced to the mandatory minimum term of imprisonment, and does not object to the terms of imprisonment recommended in the pre-sentence report. Even though we cannot base a holding in Soto’s case on the provisions of the plea agreement (because it is not part of the record, nor do we know if there ever was one), when a defendant voluntarily enters into a plea and is sentenced to the minimum term, of which he is aware, or to a term below the minimum, he has no grounds for appeal. See 18 U.S.C. § 3742(c) (1988). Under these circumstances, there is no prejudice. I am therefore reluctant to adopt a rule that the trial court’s failure to advise a defendant of his right to appeal entitles him to a remand so that he could be resenteneed de novo without requiring some constitutional or jurisdictional grounds on which he could base an appeal. In light of Soto’s sentence to the minimum term of imprisonment, Soto’s case lacks the “exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Hill, 368 U.S. at 428, 82 S.Ct. 468.
I do recognize, as my fellow panel members emphasize, that there are some marked benefits to a defendant on direct appeal that may not be available with collateral review. For example, a remand so that defendant could be advised of his right to appeal, and defendant’s subsequent first direct appeal as of right, entitles defendant to counsel, a right that does not extend to collateral review. See Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). At the very least, on appeal a defendant has the right to an Anders brief filed by counsel outlining possible grounds for appeal and reversal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, even this constitutional right to counsel has not been found to warrant the futile exercise ordered by this Court in this case.
Further, along the same lines, another difference between direct appeal and collateral review is the relief to which an appellant, as opposed to a petitioner, is entitled. For example, the law does not require that we give petitioners relief even if their claims would have entitled them to relief on direct review. The courts simply determined that judicial resources are not to be wasted correcting certain types of errors on collateral review. Compare Hill, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (holding that district court’s failure to comply with formal requirements of Rule 32 is insufficient for collateral relief), with United States v. Margiotti, 85 F.3d 100, 103 (2d Cir.1996) (holding that after a direct appeal, resentencing is typically appropriate if the sentencing court has not complied with the allocution requirements of Rule 32). Generally, direct appeal affords a larger spectrum of claims on which an appellant could prevail. Soto raises unusual circumstances because, ironically, a Rule 32(c)(5) violation by itself, would not entitle him to relief on direct appeal. See Bygrave, 97 F.3d 708. The same error, however, at least according to this Court, entitles him to habeas relief.
*60My definition of harmless error would not foreclose a remand for resentencing when the petitioner can show actual prejudice by the Rule 35(c)(5) violation. However, this would entail that he have constitutional or jurisdictional claims, or at the very least, colorable grounds for appeal. In no way do I condone a district court’s failure to advise a defendant of his right to appeal. The right to appeal a criminal conviction is, without dispute, a substantial statutory right. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). In addition, I would not release an attorney of his duty to inform his client of his appellate rights. Moreover, I would not allow defendants to file groundless motions and to use up judicial resources for no practical purpose.
The fact that Soto has no grounds for appeal should doom his claim. According to 18 U.S.C. § 3742, which defines the grounds for appeal of a sentence, a defendant may file a notice of appeal only if his sentence:
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or a term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
18 U.S.C. § 3742(a).
For those defendants who plead guilty, the grounds for appeal may be even more limited:
In the case of a plea agreement that includes a specific sentence under Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure-
(1) a defendant may not file a notice of appeal under paragraph (3) or (4) of subsection (a) unless the sentence imposed is greater than the sentence set forth in such agreement.
18 U.S.C. § 3742(c).
Soto does not raise any cognizable claim and does not even allege any of the above grounds. The entire exercise of remanding to the district court for resentencing, even if he did not have independent knowledge of his right to appeal, would be for nothing.
Notably, Soto does not even attempt to argue that he has any meritorious grounds for appeal. In his reply brief to the government’s opposition of his section 2255 motion submitted to the district court, petitioner writes: “[T]he government also claims that Soto cannot show prejudice by any lack of comprehension of his appellate rights.... Soto [does] not make such a claim. Rather what he claims is that the district court f[a]iled to inform him of his right to appeal.” Pet’s Reply Brief at 1-2. In other words, Soto feels he is entitled to relief solely because of the district court’s Rule 32(c)(5) violation, with nothing more. Even though the Court allows this conclusion, I cannot.
The circumstances in this case do not amount to a “complete miscarriage of justice.” Habeas relief is reserved for “persons whom society has grievously wronged and for whom belated liberation is little enough compensation.” Fay v. Noia, 372 U.S. 391, 440-441, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Soto is therefore not entitled to habeas relief. I would affirm the district court’s denial of Soto’s § 2255 motion.
. In practice, the Court does not change the former per se rule as delineated in Reid v. United States, 69 F.3d 688 (2d Cir.1995) (holding that a district court’s failure to advise a defendant of his right to appeal requires vacatur of the sentence and a remand for resentencing), and clarified by Valente v. United States, 111 F.3d 290 (2d Cir.1997) (holding that "petitioner under § 2255 who failed to appeal from his conviction is not entitled to be resenlenced based on the district court’s failure to advise him of a right to appeal if he knowingly and voluntarily waived the right to appeal [in the plea agreement]”) and United States v. Bygrave, 97 F.3d 708 (2d Cir.1996) (holding that no remand is necessary when defendant did in fact appeal despite a Rule 32(c)(5) error).
. Although Strickland, McHale and Restrepo noted that certain errors committed by ineffective counsel allow a presumption of prejudice, as discussed above, these rare exceptions are'not before the Court at this time. See Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (holding that prejudice can be presumed where a case-by-case inquiry into prejudice is not worth the cost, the error is easy to identify and such errors are easy for the government to prevent). In fact, conservation of judicial resources require that we deny relief in this case.