Padin v. United States , 521 F. App'x 36 ( 2013 )

11-4812
Padin v. United States
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 18th day of April, two thousand thirteen.
PRESENT: AMALYA L. KEARSE,
DENNY CHIN,
Circuit Judges,
JANET C. HALL,
District Judge.*
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FLORENCIO PADIN,
Petitioner-Appellant,
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UNITED STATES OF AMERICA,
Respondent-Appellee.
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FOR PETITIONER-APPELLANT: Florencio Padin, pro se,
Rochester, Minnesota.
*
The Honorable Janet C. Hall, of the United States
District Court for the District of Connecticut, sitting by
designation.
FOR RESPONDENT-APPELLEE: Monica J. Richards, Joseph J.
Karaszewski, Assistant United
States Attorneys, for William J.
Hochul, Jr., United States
Attorney for the Western District
of New York, Buffalo, New York.
Appeal from the United States District Court for the
Western District of New York (Siragusa, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is
AFFIRMED.
Petitioner-appellant Florencio Padin, proceeding pro
se, appeals the district court's decision and order dated
October 26, 2011, denying his motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255. We granted a
certificate of appealability on the following issue: "whether
the district court should have conducted a hearing in light of
the conflicting affidavits presented to the district court on
whether petitioner directed his attorney to file an appeal." We
assume the parties' familiarity with the underlying facts, the
procedural history of the case, and the issues presented for
review.
In reviewing a district court's denial of relief under
28 U.S.C. § 2255, we review findings of fact for clear error and
conclusions of law de novo. See Scanio v. United States, 37
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F.3d 858, 859 (2d Cir. 1994). We review a district court's
denial of an evidentiary hearing under 28 U.S.C. § 2255(b) for
abuse of discretion. See Chang v. United States, 250 F.3d 79,
85-86 (2d Cir. 2001); see also Puglisi v. United States, 586
F.3d 209, 215 (2d Cir. 2009) ("[W]here the judge who tried the
case holds a limited hearing to decide a generic claim, the
determination of whether the hearing was sufficient is reviewed
for an abuse of discretion.").
In his § 2255 motion, Padin alleged that his counsel
rendered ineffective assistance by failing to file a notice of
appeal when he was asked to do so. See Roe v. Flores-Ortega,
528 U.S. 470, 477 (2000) ("[A] lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts
in a manner that is professionally unreasonable."); accord
Campusano v. United States, 442 F.3d 770, 773 (2d Cir. 2006).
In opposition to Padin's motion, the government submitted an
affidavit of defense counsel explicitly stating that: (1) prior
to Padin's guilty plea, he discussed with Padin the appeal
waiver contained in the proposed plea agreement; (2) he
explained to Padin that "if he entered the plea and was
thereafter sentenced in accordance with the terms of the written
plea agreement that he would be waiving his right to appeal any
component of his sentence which fell within or was less than the
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sentencing range for imprisonment"; and (3) "[a]t no time during
[counsel's] representation of Mr. Padin did he request, or
direct, that a notice of appeal be filed, or ask that an appeal
be taken." Aff. of Felix V. Lapine ¶¶ 2-3, United States v.
Padin, No. 6:03-CR-6044 (W.D.N.Y. Jan. 14, 2008), ECF No. 370-5.
Subsequently, Padin submitted an affidavit asserting that "[a]t
sentencing, the District Court advised the defendant that
defendant had 'Ten Days' to file a Notice of Appeal. After
sentencing the defendant told that defense Attorney Mr. Felix V.
Lapine that defendant wanted to appeal the sentence." Aff. of
Florencio Padin ¶ 3, United States v. Padin, No. 6:03-CR-6044
(W.D.N.Y. Feb. 11, 2008), ECF No. 372. Padin also submitted an
affidavit from his wife, stating that after Padin was sentenced,
she "went to the law office of Attorney Felix V. Lapine to
discuss, what could be done about his sentence. I asked
Attorney Felix V. Lapine about an appeal, and Attorney Felix V.
Lapine gave me all of my husband's legal papers and put me out
of his office." Aff. of Nereida Padin ¶ 2, United States v.
Padin, No. 6:03-CR-6044 (W.D.N.Y. Feb. 11, 2008), ECF No. 373.
The district court declined to hold a full-blown
testimonial hearing, and denied the motion on the basis of the
written affidavits, Padin's plea agreement, the plea and
sentencing transcripts, and the court's own observations of
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defense counsel's diligent representation of Padin. See Padin
v. United States, Nos. 07-CV-6381, 03-CR-6044, 2011 U.S. Dist.
LEXIS 123823, at *6-9 (W.D.N.Y. Oct. 26, 2011). The district
court concluded that it was not "plausible that Lapine . . .
simply ignored [a] request [by Padin] that a notice of appeal be
filed." Id. at *9.
After review of the record in this case, we conclude
that the district court acted within its discretion in declining
to hold a full-blown testimonial hearing on Padin's § 2255
motion. See, e.g., Chang, 250 F.3d at 86 (explaining that a
district court may satisfy the requirements of § 2255 by
"us[ing] methods . . . to expand the record without conducting a
full-blown testimonial hearing"); Raysor v. United States, 647
F.3d 491, 494 (2d Cir. 2011) ("It is within the district court's
discretion to determine the scope and nature of a hearing.").
In light of the detailed affidavit of defense counsel, the
transcripts of the proceedings, the district court's
observations of Padin and his interactions with counsel, and the
district court's careful factual analysis, we conclude that
there was a sufficient evidentiary record to permit the district
court to reject, without a full testimonial hearing, Padin's
claim that he asked his counsel to file a notice of appeal on
his behalf. See Chang, 250 F.3d at 85-86.
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Further, even where a defendant does not ask his
attorney to file an appeal, the attorney has a constitutionally
imposed duty to consult with the defendant about whether he
wants to file an appeal if "there is reason to think either (1)
that a rational defendant would want to appeal . . . , or (2)
that this particular defendant reasonably demonstrated to
counsel that he was interested in appealing." Roe, 528 U.S. at
480. In determining whether a rational defendant would want to
appeal or whether the defendant reasonably demonstrated an
interest in appealing, a court must consider all the relevant
factors, including whether the conviction followed a trial or a
guilty plea, whether the defendant received the sentence
bargained for as part of a plea, and whether the plea expressly
reserved or waived some or all appeal rights. Id.Here, Padin entered a guilty plea, he received a
sentence at the low end of the Guidelines range he agreed to,
and he waived his right to appeal a sentence within or below
that range. Accordingly, we conclude that the district court
did not err in holding that defense counsel did not render
constitutionally defective assistance by failing to file a
notice of appeal.
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We have considered Padin's remaining arguments and
conclude that they lack merit. Accordingly, we AFFIRM the order
of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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