Berrio-Callejas v. United States ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 96-1524





                           CARLOS ALBERTO BERRIO-CALLEJAS,



                                Plaintiff, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                 Defendant, Appellee.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Jaime Pieras, Jr., U.S. District Judge]
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                                 ____________________



                                        Before



                                Torruella, Chief Judge,
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                           Stahl and Lynch, Circuit Judges.
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                                 ____________________



            Carlos Alberto Berrio-Callejas on brief pro se.
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            Guillermo Gil, United  States Attorney,  Jose A.  Quiles-Espinosa,
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        Senior Litigation  Counsel,  and Nelson  Perez-Sosa, Assistant  United
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        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
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        in implicitly  concluding that the  petition "and records of  the case



        conclusively show that [he] is entitled to no relief," see id., on his
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        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
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        17,  23 (1st Cir.  1992).  We  agree.  The  court had  no authority to



        credit petitioner's  counsel's letter over petitioner's,  cf. Castillo
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        v.  United  States,  34  F.3d  443,  445-46  (7th Cir.  1994),  as  it
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        apparently did  in resolving this  issue against him, see  Callejas v.
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        United States,  917 F. Supp.  125, 131-32 (D.  Puerto Rico 1996).   In
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        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.
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            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
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        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
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        Baker  v. Kaiser, 929  F.2d 1495, 1499  (10th Cir.  1991) (counsel has
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        constitutional  duties  along  these lines);  but  see  Castellanos v.
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        United States, 26 F.3d 717, 719-20 (7th Cir. 1994) (appearing to place
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        onus on  defendant to request  an appeal); United States  v. Peak, 992
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        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
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        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.



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