Fernando Soto v. United States

185 F.3d 48, 1999 U.S. App. LEXIS 16782

• Court: Court of Appeals for the Second Circuit
• Decided: July 21, 1999
• Docket: 1998
• Status: Published

Opinions

STRAUB, Circuit Judge:

Petitioner-Appellant Fernando Soto appeals from a final order of the United States District Court for the Eastern District of New York (Charles P. Sifton, Chief Judge), denying his motion for post-conviction relief made pursuant to 28 U.S.C. § 2255. On appeal, Soto contends principally that the District Court should have granted his § 2255 motion because the District Court at sentencing failed to ensure that he had discussed his presentence report with counsel and failed to inform him of his right to appeal.

We hold that in light of the recent Supreme Court decision in Peguero v. United States, 526 U.S. 23, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999), a sentencing court’s failure to inform a defendant of his right to appeal is subject to harmless error analysis. We hold further that the government bears the burden of establishing harmlessness by showing through clear and convincing evidence that the defendant either actually exercised this right, waived this right, or had independent knowledge of this right. We therefore vacate the District Court’s order denying Soto’s § 2255 motion and remand for further proceedings so that the District Court can make factual findings as to Soto’s knowledge of his right to appeal.

BACKGROUND

On September 16, 1992, Soto pleaded guilty to charges of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846, and of possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A)(ii)(II). Soto did not enter his plea pursuant to a plea agreement or any other arrangement with the government.

After a five day adjournment to allow Soto to familiarize himself with the presen-tence report prepared for his case, the District Court sentenced Soto on February 10, 1993. The District Court first calculated Soto’s base offense level to be 32, in accordance with Sentencing Guidelines § 2D1.1(a)(3) (applicable to offenses involving between 5 and 15 kilograms of cocaine). It then reduced his offense level by two levels for acceptance of responsibility, pursuant to Sentencing Guidelines § 3E1.1(a). This adjusted offense level, combined with Soto’s Criminal History Category of I, ultimately yielded a sentencing range of 97 to 121 months’ imprisonment. Under 21 U.S.C. § 841(b)(1)(A)(ii)(II), however, the mandatory minimum sentence for the charged offenses was 10 years’ imprisonment, which was the sentence that the District Court ultimately imposed. The District Court did not inform Soto of his right to appeal his sentence, and he in fact did not appeal.

In 1996, Soto moved to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). In this motion, Soto sought the application of the “safety valve” provision, 18 U.S.C. § 3553(f), enacted after his sentencing, which allows district courts to disregard statutory minimum sentences in certain drug cases under certain conditions.¹ The District Court denied the motion, holding that the safety valve provision was not retroactively applicable.

On or about March 24, 1997, Soto filed a pro se motion for post-conviction relief pursuant to 28 U.S.C. § 2255, seeking va-catur of his sentence and resentencing with the benefit of the safety valve provision. He argued that the District Court failed to ensure that he had discussed the presentence report with counsel, as required by Federal Rule of Criminal Procedure 32(c)(3)(A), and that it failed to inform him of his right to appeal, as required by Federal Rule of Criminal Procedure 32(c)(5).

With respect to the Rule 32(c)(3)(A) claim, the District Court concluded that it had properly inferred from a colloquy with Soto’s counsel at the beginning of the sentencing proceeding that Soto had discussed the presentence report with his counsel. The District Court therefore concluded that it complied with Rule 32(c)(3)(A). With respect to the Rule 32(c)(5) claim, the District Court acknowledged that it did not inform Soto of his right to appeal, but reasoned that Soto had no meritorious claim for appeal since he received the then-applicable mandatory minimum sentence for his crimes. Thus, because Soto had no viable appellate claim, the District Court concluded that its failure to inform him of his right to appeal was harmless, and that vacating his sentence in order to reinstate his right to appeal “would serve no practical purpose.” The District Court therefore denied Soto’s § 2255 motion, but granted him a certificate of appealability, pursuant to 28 U.S.C. § 2253, as to the Rule 32(c)(5) claim. Soto, proceeding in forma pauperis and now represented by counsel, appeals the denial of his § 2255 motion.

DISCUSSION

On appeal, Soto contends that the District Court’s determination that it complied with Rule 32(c)(3)(A) is not supported by the record, and that the District Court’s refusal to grant the § 2255 motion despite its admitted failure to comply with Rule 32(c)(5) violates our holding in Reid v. United States, 69 F.3d 688 (2d Cir.1995) (per curiam). Recent changes in the law of federal post-conviction relief, however, have generated uncertainty concerning the circumstances under which an appeal may be taken from the denial of such a motion in the District Court. Although neither party originally questioned the propriety of our jurisdiction,² it is nevertheless an issue that this Court has both the power— and, more importantly, the obligation — to examine sua sponte. See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1175 (2d Cir.1995), cert. denied, 517 U.S. 1119, 116 S.Ct. 1351, 134 L.Ed.2d 520 (1996). Thus, before we address the merits of Soto’s arguments, we first consider whether we have jurisdiction to hear his appeal.

I. Appellate Jurisdiction

In 1996, Congress passed the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214. Among other changes, it amended 28 U.S.C. § 2253 to allow appeals from proceedings arising under 28 U.S.C. § 2254 (providing habeas relief from state court judgments) and § 2255 only if a certificate of appealability is issued.³ See 28 U.S.C. § 2253(c)(1) (Supp.1998); Lozada v. United States, 107 F.3d 1011, 1013 (2d Cir.1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 260 (2d Cir.1997), cert. denied, - U.S. -, 119 S.Ct. 384, 142 L.Ed.2d 318 (1998). A certificate of appealability, in turn, may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); accord Lozada, 107 F.3d at 1013.

In the case before us, the government strongly argues that the certificate of ap-pealability issued without the requisite substantial showing of the denial of a constitutional right. We will assume that to be the case. Consequently, we must decide whether a certificate of appealability issued without meeting the “substantial showing of the denial of a constitutional right” requirement nonetheless suffices to confer appellate jurisdiction. We hold that it does.

Two of our sister circuits that have addressed this issue have concluded that a certificate of appealability that was issued erroneously nevertheless suffices to confer jurisdiction on a court of appeals. See Young v. United States, 124 F.3d 794, 799 (7th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 2324, 141 L.Ed.2d 698 (1998); see also United States v. Talk, 158 F.3d 1064, 1068 (10th Cir.1998), cert. denied, - U.S. -, 119 S.Ct. 1079, 143 L.Ed.2d 81 (1999) (relying on Young and declining to question the validity of the certificate of appeal-ability sua sponte); cf. Nichols v. Bowersox, 172 F.3d 1068, 1070-71 n. 2 (8th Cir.1999) (en banc) (holding that 28 U.S.C. § 2253(c)(2)’s denial of a constitutional right requirement does not preclude review of preliminary procedural issues antecedent to the merits of an appeal); Nowakowski v. Maroney, 386 U.S. 542, 543, 87 S.Ct. 1197, 18 L.Ed.2d 282 (1967) (holding that “when a district judge grants [a pre-AEDPA certificate of probable cause], the court of appeals must grant an appeal in forma pauperis ... and proceed to a disposition of the appeal in accord with its ordinary procedure”) (emphasis added). “The certificate is a screening device.... Once a certificate has issued, ... [judicial and prosecutorial] resources have been invested .... [and] there is little point in scrutinizing the certificate of appealability.” Young, 124 F.3d at 799. We note that this Court has also previously intimated the same “gate-keeping” view of the certificate of appealability requirement. See Lozada, 107 F.3d at 1015 (describing issuance of certificate of appealability as a “ ‘gate-keeping’ function”). Thus, dismissing an appeal after a certificate of appeala-bility has already issued would be of little utility; installing this Court as a gate keeper for the gate keeper would be redundant.

In addition, the Supreme Court’s handling of the appeal in Peguero v. United States, - U.S. -, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999), lends further support to this treatment of the certificate of appeala-bility. In Peguero, the Supreme Court was presented with an issue identical to the one we face: whether a sentencing court’s failure to inform a defendant of his right to appeal entitles the defendant to collateral relief. See id. 119 S.Ct. at 963. In its brief, the government noted that the certificate of appealability was issued erroneously because the claimed error was merely a violation of the criminal rules and not the Constitution. See Brief for Respondent, Peguero v. United States, 1998 WL 848085, at *6 n. 5 (Dec. 8, 1998). Despite the inclusion of this point in the government’s brief, the Supreme Court nevertheless considered and rendered a decision on the merits of the claim. See Peguero, 119 S.Ct. at 963-65. Since jurisdiction is an issue that each federal court has a duty to examine sua sponte, and since jurisdiction cannot be created by consent of the parties, the Supreme Court’s example suggests that a certificate of ap-pealability that does not meet the denial of a constitutional right requirement — and hence, is erroneously issued — nevertheless suffices to confer appellate jurisdiction.

We have recently noted that other panels of this Court have rejected sub silen-tio various challenges by the government to appellate jurisdiction based on the propriety of an issued certificate of appeala-bility. See Thomas v. Greiner, 174 F.3d 260, 261 (2d Cir.1999) (per curiam). We now make explicit what our sister circuits have held and what this Court and the Supreme Court have suggested: that a certificate of appealability that is issued erroneously nevertheless suffices to confer appellate jurisdiction under § 2253. Of course, the “substantial showing of the denial of a constitutional right” remains a prerequisite for a certificate of appealability, and issuing courts- — this Court as well as district courts — should be mindful of this requirement. Nevertheless, once a certificate of appealability is issued, our appellate jurisdiction has vested, and this result holds even if the certificate of ap-pealability is issued improvidently.

Because the certificate of appealability confers appellate jurisdiction on us, we now proceed to the merits of Soto’s claims.

II. The Sentencing Court’s Failure To Inform Soto Of His Right To Appeal

Although Soto presents two claims on appeal — the sentencing court’s failure to comply with Federal Rule of Criminal Procedure 32(c)(3)(A) and its failure to comply with Federal Rule of Criminal Procedure 32(c)(5) — the certificate of appealability issued by the District Court specified only the Rule 32(c)(5) claim for appeal. Therefore, the only claim that we may address is the sentencing court’s failure to inform Soto of his right to appeal. See Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir.1998); Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir.1997) (per curiam); see also 28 U.S.C. § 2253(c)(3) (“The certificate of appealability ... shall indicate which specific issue or issues satisfy the showing required by paragraph (2) [setting forth the denial of a constitutional right requirement].”).

Rule 32(c)(5) of the Federal Rules of Criminal Procedure provides, inter alia, that “[a]fter imposing sentence in any case, the court must advise the defendant of any right to appeal the sentence, and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis.” We have held that “the policy of preventing excessive litigation [concerning a defendant’s knowledge of his right to appeal] justifies a strict and literal enforcement” of Rule 32(c)(5).⁴ Reid v. United States, 69 F.3d 688, 689 (2d Cir.1995) (per curiam). Thus, we established in Reid what has been described as a per se rule requiring vacatur of a sentence and remand for resentencing when a sentencing court fails to comply with its duty to inform.

Reid, however, is perhaps not as sweeping as it may appear at first blush. In United States v. Bygrave, 97 F.3d 708 (2d Cir.1996), we held that Reid did not require vacatur and remand despite the sentencing court’s failure to comply with Rule 32(c)(5) because the defendant had actually filed an appeal. See id. at 710. “The existence of ... [that] appeal eliminates any possible claim that [the defendant] ha[d] been prejudiced in any way by the District Court’s failure to comply strictly with Rule 32(c)(5).” Id. Similarly, in Valente v. United States, 111 F.3d 290 (2d Cir.1997) (per curiam), we held that Reid did not require vacatur and remand despite the sentencing court’s failure to inform the defendant of his right to appeal because the defendant had pleaded guilty pursuant to a plea agreement in which he agreed to waive his right to appeal. See id. at 293. “In such a case, the sentencing judge’s failure to advise the defendant of his right to appeal can have caused him no harm because, as a consequence of his waiver, he had no right to appeal those claims.” Id. at 292. We have, thus, limited Reid’s application in certain circumstances.

More significantly, the Supreme Court in Peguero v. United States, 526 U.S. 23, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999), has explicitly curtailed any per se rule articulated by Reid. In Peguero, the Supreme Court held that a defendant is not entitled to collateral relief arising from a sentencing court’s failure to inform him of his right to appeal when the defendant “had independent knowledge of the right to appeal and so was not prejudiced by the trial court’s omission.” Id. 119 S.Ct. at 965. The Court noted that “as a general rule, ... a court’s failure to give a defendant advice required by the Federal Rules is a sufficient basis for collateral relief only when the defendant is prejudiced by the court’s error.” Id. at 964 (citing Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) and United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979)). “[A] district court’s failure to advise the defendant of his right to appeal does not entitle him to habeas relief if he knew of his right and hence suffered no prejudice from the omission.” Id. 119 S.Ct. at 963.

Thus, in light of Bygrave, Valente, and Peguero, it is clear that Reid’s reach has been limited. Rather than a per se rule, a sentencing court’s failure to inform a defendant of his right to appeal is subject to harmless error analysis. The only issue confronting us now is what constitutes prejudice or lack thereof under this analysis.

In Peguero, the District Court had specifically found, after an evidentiary hearing, that the petitioner had independent knowledge of his right to appeal. See id. Because of the petitioner’s knowledge, the Supreme Court deemed him not to have been harmed by the sentencing court’s omission. See id. 119 S.Ct. at 965. The issue in Peguero, thus, is similar to those presented in Bygrave and Valente because the petitioners in those cases could not have been prejudiced by their respective sentencing courts’ failure to inform them of a right that either was actually exercised, as in Bygrave, or that could not have been exercised, as in Valente.

Here, in contrast, the District Court acknowledged that it failed to inform Soto of his appellate right, and the government does not contend that Soto waived or was independently aware of this right. Under these circumstances, the failure to comply with Rule 32(c)(5) has resulted in Soto’s loss of his right to appeal, which, in and of itself, is sufficiently prejudicial to merit collateral relief. It is well established that “a collateral challenge may not do service for an appeal.” United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); accord Lucas v. United States, 963 F.2d 8, 14 (2d Cir.), cert. denied, 506 U.S. 895, 113 S.Ct. 270, 121 L.Ed.2d 199 (1992). “[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” Frady, 456 U.S. at 166, 102 S.Ct. 1584. “[A]n error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Thus, the failure to inform a defendant of his right to appeal, when combined with the defendant’s lack of independent knowledge of and his actual failure to exercise this right, constitutes more than a mere failure to comply with the formal requirements of the Federal Rules of Criminal Procedure. Cf. Timmreck, 441 U.S. at 784-85, 99 S.Ct. 2085 (“[W]e find it unnecessary to consider whether § 2255 relief would be available if a violation of [the criminal rules] occurred in the context of other aggravating circumstances. We decide only that such collateral relief is not available when all that is shown is a failure to comply with the formal requirements of the [rules].”) (emphasis added) (citation and internal quotation marks omitted). Rather, the failure to inform under these conditions leads to the loss of an important — albeit non-constitutional — federal right which, by itself, is sufficient to merit collateral relief.

In addition, we hold that petitioners need not specify what appellate claims they lost due to a sentencing court’s failure to inform in order to allege prejudice sufficient to merit collateral relief. As Justice O’Connor wrote in her concurrence in Peguero:

[T]here is no reason why a defendant should have to demonstrate that he had meritorious grounds for an appeal when he is attempting to show that he was harmed by the district court’s error. To require defendants to specify the grounds for their appeal and show that they have some merit would impose a heavy burden on defendants who are often proceeding pro se in an initial 28 U.S.C. § 2255 motion.

119 S.Ct. at 965-66 (O’Connor, J., concurring); accord Tress v. United States, 87 F.3d 188, 190 (7th Cir.1996); cf. Restrepo v. Kelly, 178 F.3d 634, 641-42 (2d Cir.1999) (holding that a habeas petitioner alleging ineffective assistance of counsel based on counsel’s failure to file a requested notice of appeal need not demonstrate that his defaulted appeal would have succeeded in order to establish prejudice sufficient for habeas relief); McHale v. United States, 175 F.3d 115, 119 (2d Cir.1999) (holding that a § 2255 petitioner alleging ineffective assistance of counsel based on counsel’s failure to perfect an appeal “need not demonstrate that, but for the ineffectiveness of-counsel, such an appeal would have succeeded or even would have had merit” in order to gain collateral relief). “Those whose rights to appeal have been frustrated should be treated exactly like any other appellants; they should not be given an additional hurdle to clear just because their rights were violated at some earlier stage in the proceedings.” Rodriquez v. United States, 395 U.S. 327, 330, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969) (rejecting a Ninth Circuit rule that required a § 2255 petitioner who had requested an appeal to show prejudice from his counsel’s failure to perfect the appeal by presenting appellate claims and demonstrating their likelihood of success in a § 2255 motion).

For these reasons, we recognize that Bygrave, Valente, and Peguero have restricted the reach of Reid. In light of these cases, a sentencing court’s failure to inform a defendant of his right to appeal does not automatically require vacatur of the sentence and remand for resentencing. Rather, if a petitioner actually took an appeal, waived his right to appeal, or had independent knowledge of his appellate right, then the petitioner has suffered no prejudice meriting collateral relief. Where a sentencing court has failed to inform a defendant of his right to appeal, it shall be the government’s burden to present clear and convincing evidence that the defendant has suffered no such prejudice. See United States v. Drummond, 903 F.2d 1171, 1174 (8th Cir.), cert. denied, 498 U.S. 1049, 111 S.Ct. 759, 112 L.Ed.2d 779 (1991); see also Felder v. United States, 429 F.2d 534, 535 (2d Cir.) (holding that when a § 2255 petitioner claims sentencing court failed to inform him of his right to appeal, the government bears the burden of establishing that waiver of the right is “clearly established”), cert. denied, 400 U.S. 908, 91 S.Ct. 152, 27 L.Ed.2d 147 (1970); cf. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (noting that under harmless error standard, the government bears the burden of persuasion with respect to prejudice).

In the case at hand, we vacate and remand for further findings regarding Soto’s knowledge of his right to appeal. We note that the District Court acknowledged that it did not inform Soto of this right, and that the government has failed to allege that Soto somehow had independent knowledge of it. Given these factors, we could simply vacate the District Court’s order denying Soto’s § 2255 motion and remand for resentencing. Nevertheless, there has been no explicit finding as to Soto’s knowledge — if any — of his appellate right. In addition, the principles we have articulated are ones of first impression in this Circuit. Thus, under these circumstances, we remand this case for a determination of Soto’s knowledge of his appellate right. On remand, if the District Court finds by clear and convincing evidence that Soto was aware of his right to appeal, then Soto is not entitled to relief. If, however, the District Court cannot so find, then Soto’s sentence shall be vacated and he shall be resentenced de novo — and advised of his appellate right — so that he may exercise his right to appeal.

CONCLUSION

For the foregoing reasons, we vacate and remand this case to the District Court for further proceedings.

2 . After submission of this case, pursuant to our directions, the parties filed supplemental briefs addressing the issue of our jurisdiction.

3 . We have previously interpreted 28 U.S.C. § 2253(c)(1) to allow district judges as well as circuit justices and circuit judges to issue certificates of appealability. See Lozada v. United States, 107 F.3d 1011, 1014-16 (2d Cir.1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 260 (2d Cir.1997), cert. denied, - U.S. -, 119 S.Ct. 384, 142 L.Ed.2d 318 (1998).

4 . Reid addressed the District Court's duty to inform a defendant of the right to appeal when it was set forth in Rule 32(a)(2). In 1994, the Rules were amended, and since then, the duty to inform has been set forth in Rule 32(c)(5). The 1994 amendments, however, effected no substantive change in the Rule. See Fed.R.Crim.P. 32 Advisory Committee Notes for 1994 Amendments; Valente v. United States, 111 F.3d 290, 291 n. 2 (2d Cir.1997) (per curiam).