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United States v. Melendez

United States District Court, M.D. Pennsylvania

January 13, 2017

UNITED STATES OF AMERICA
v.
CARLOS BURGOS MELENDEZ, Defendant

          MEMORANDUM

          WILLIAM W. CALDWELL UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Before this court is Defendant Carlos Burgos Melendez's pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Doc. 317). Defendant contends that he received ineffective assistance of counsel because his trial counsel ignored Defendant's alleged request to file a direct appeal. (Id. at 4). For the reasons that follow, we will deny Defendant's motion.

         II. Background

         On July 7, 2015, Defendant, by waiver of indictment, pleaded guilty, pursuant to a plea agreement, to a felony information charge of one count of conspiracy to distribute and possess with intent to distribute cocaine, 21 U.S.C. § 846. (Docs. 173 & 192-93, 230). As part of the plea agreement, Defendant waived his right to a direct appeal on the condition that he received a sentence within or below the applicable range under the United States Sentencing Guidelines (Guidelines). (Doc. 171 at 31). A Presentence Investigation Report (PSR) was filed, which determined, based on a total offense level of 29 and category VI criminal history, that Defendant's imprisonment range under the Guidelines was 151 to 188 months. (PSR ¶ 52). On October 22, 2015, this court sentenced Defendant to 144 months' imprisonment. (Doc. 230 at 2).

         On July 25, 2016, Defendant filed the instant § 2255 motion, claiming that he received ineffective assistance of trial counsel under the Sixth Amendment because his counsel did not file a direct appeal of his sentence. (Doc. 317 at 4). Defendant's motion claims that, on October 26, 2015, he contacted his counsel via telephone from a Perry County correctional facility and instructed counsel to appeal his sentence. (Doc. 317 at 4). Proceeding pro se, Defendant has provided no evidence in support of this claim, and did not brief the issue. Defendant was advised of the limitation upon his right to file another § 2255 motion, and was given the opportunity to withdraw his motion; he proceeded with the motion, and this court requested further briefing from the Government. (Docs. 318, 321).

         The Government, after contacting defendant's trial counsel, concedes that communication between Defendant and his counsel took place on October 26, 2015, but argues that: (1) Defendant contacted counsel on that date regarding Defendant's detainer and did not request his counsel to file a direct appeal; and (2) even if Defendant requested an appeal, a failure to file the appeal by counsel would not be ineffective assistance because Defendant waived his right to appeal as part of his written plea agreement, and therefore any appeal would have been a breach of that agreement. (Doc. 328 at 5). Defendant did not reply to these arguments and the motion is now ripe for review.

         III. Discussion

         A. Ineffective Assistance Standard

         The burden is on Defendant in a § 2255 motion to prove his claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish ineffective assistance of counsel under the Sixth Amendment for an attorney's failure to file an appeal, a defendant must show “(1) that counsel's representation ‘fell below an objective standard of reasonableness, ' and (2) that counsel's deficient performance prejudiced the defendant.” Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (citations omitted) (quoting Strickland, 466 U.S. at 688). District courts must “judge the reasonableness of counsel's challenged conduct on the facts of the particular case, ” and “[j]udicial scrutiny of counsel's performance must be highly deferential.” Flores-Ortega, 528 U.S. at 477 (quoting Strickland, 466 U.S. at 689-90).

         With regard to objectively reasonable representation, counsel has “a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfriviolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Id. at 480. “In making this determination, courts must take into account all the information counsel knew or should have known.” Id. “Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings.” Id. In cases where a defendant pleaded guilty, “the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights.” Id.

         Prejudice is established when it has been shown that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Because a counsel's failure to file an appeal when requested would deprive his client of an appeal proceeding altogether, “the Supreme Court [has] held that ‘when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal.'” Solis v. United States, 252 F.3d 289, 293 (3d Cir. 2001) (quoting Flores-Ortega, 528 U.S. at 484). A defendant need not specify the points that he would have raised on appeal, Flores-Ortega, 528 U.S. at 485, as “[p]rejudice is presumed from counsel's failure to file a notice of appeal when so requested by a client, ” Solis, 252 F.3d at 293-94. “[E]vidence that there were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant, ” and both the performance and prejudice prongs of Strickland “may be satisfied if the defendant shows nonfrivolous grounds for appeal.” Flores-Ortega, 528 U.S. at 485-86.

         Here, Defendant claims that he directed his attorney to file an appeal during a telephone conversation on October 26, 2015, and that counsel failed to comply with his instruction. (Doc. 317 at 4). Although this pro se Defendant provided no support for the allegation, the Government, upon contacting Defendant's trial counsel, concedes that a conversation between Defendant and his counsel occurred on that date; thus, the parties only dispute the substance of the conversation. (Doc. 328 at 5). Therefore, on its face, Defendant's § 2255 allegation creates a question of fact of whether he directed his attorney to file an appeal, and such a question would typically require this court to hold an evidentiary hearing. See Solis, 252 F.3d at 294 (“[W]hen a defendant is convicted of a crime and alleges that his lawyer failed to appeal the conviction, and there is a potential factual dispute on this issue, the defendant is entitled to a hearing before the District Court to prove that he made the request and that the lawyer failed to honor it.”). However, in Solis, the court caveated its hearing requirement, stating “[h]owever, a defendant would not be entitled to a hearing if his allegations were contradicted conclusively by the record, or if the allegations were patently frivolous.” 252 F.3d at 294.

         In this case, we find that an evidentiary hearing is unnecessary to resolve the factual dispute presented because, even assuming the truth of the allegations in his § 2255 motion, we determine that Defendant has nonetheless failed to show that his counsel was ineffective in not filing an appeal because Defendant knowingly and voluntarily waived his right to appeal as part of his plea agreement, and such waiver was binding for the reasons set forth below. Thus, even taking as true the nonfrivolous allegation in Defendant's motion that counsel failed to appeal despite Defendant's instruction, we hold that the presence of the appellate waiver in Defendant's plea agreement, combined with record evidence establishing the enforceability of that waiver, conclusively shows that Defendant is not entitled to relief under either prong of Strickland, as applied by Flores-Ortega. See United States v. Dawson, 857 F.2d 923, 927-28 (3d Cir. ...


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