Galviz Zapata v. U.S.

• Decision Date: 06 December 2005
• Docket Number: No. 01-2575.,01-2575.
• Citation: 431 F.3d 395
• Parties: Hugo GALVIZ ZAPATA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

431 F.3d 395

Hugo GALVIZ ZAPATA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 01-2575.

United States Court of Appeals, Second Circuit.

Argued: May 3, 2005.

Decided: December 6, 2005.

Norman Trabulus, Garden City, New York, for Petitioner-Appellant.

Elaine D. Banar, Assistant United States Attorney (Roslynn R. Mauskopf United States Attorney for the Eastern District of New York, on the brief, and Peter A. Norling, Assistant United States Attorney, of counsel), Brooklyn, New York, for Respondent-Appellee.

Before: SOTOMAYOR, B.D. PARKER, and WESLEY, Circuit Judges.

WESLEY, Circuit Judge.

Hugo Galviz Zapata appeals from the district court's denial of his petition for a writ of habeas corpus. Zapata presses an ineffective assistance of counsel claim. In his pro se petition of November 9, 2000, Zapata asserted that his trial counsel, Lisa Scolari, failed to file a notice of appeal after being instructed to do so. In an affidavit filed in support of the petition, Zapata also alleged that Scolari failed to consult with him regarding an appeal of his sentence. The district court subsequently appointed counsel to represent Zapata and held an evidentiary hearing on March, 9, 2001, at which both Zapata and Scolari testified. Zapata testified that he "told Ms. Scolari that [he] would like to appeal." The district court found Zapata not credible as to this assertion and credited Scolari's testimony that it was her professional practice to file a notice of appeal whenever a client expressed an interest in appealing. The court therefore denied petitioner's claim that Scolari failed to execute an appeal as directed but allowed supplemental briefing on any remaining claims raised in the petition.

In a post-hearing letter submission, Zapata disagreed with the district court's conclusion that he had never asked Scolari to file a notice of appeal but pointed out to the court that it had not addressed the additional claim in his pro se petition, at ¶ 7, that Scolari had not consulted with him about an appeal and had "abandoned" him after sentencing. The government asserted in response that Zapata had "now alter[ed] his position" but maintained that the petition should be denied because Scolari had no duty to consult with Zapata about an appeal. In a memorandum and order issued on August 22, 2001, the district court dismissed Zapata's petition. The district court concluded that, even assuming that Scolari did not consult with Zapata regarding an appeal, "petitioner is unable to demonstrate that his attorney had a duty to consult with him regarding his right to appeal, or that he would have appealed but for counsel's failure to perform that duty."

The district court's willingness to assume a fact that was a necessary predicate to the court's effective assistance of counsel analysis presents us with a troubling choice. If we accept the assumption, we must engage in extensive legal reasoning predicated on a fact not yet determined. If we reject the assumption, we must make an independent factual determination — an endeavor for which appellate courts are not optimally situated. Thus, we remand the case for further fact-finding to determine whether Scolari did in fact fail to consult with Zapata regarding an appeal.¹

Where an ineffective assistance of counsel claim involves an assertion that counsel failed to consult with the defendant about an appeal, the question is determined by whether "a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or ... this particular defendant reasonably demonstrated to counsel that he was interested in appealing," Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and whether "there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, [defendant] would have timely appealed," id. at 484, 120 S.Ct. 1029. Flores-Ortega instructs that we "`judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct,'" id. at 477, 120 S.Ct. 1029 (quoting Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), and that "courts must take into account all the information counsel knew or should have known," id. at 480, 120 S.Ct. 1029. Thus, in order to succeed on his ineffective assistance of counsel claim, Zapata must show that (a) counsel knew or should have known of a nonfrivolous ground for appeal (and thus had a duty to consult), (b) counsel breached this duty by failing to consult, and (c) counsel's breach prejudiced the petitioner.

On July 7, 1999, Zapata pled guilty to conspiring to distribute and to possess with intent to distribute heroin as proscribed by 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. His plea agreement did not explicitly identify any particular quantity of heroin but stated that Zapata would be subject to a mandatory minimum of ten years pursuant to 21 U.S.C. § 841(b)(1)(A)(i), which applies only to "1 kilogram or more" of heroin. The plea agreement also indicated that, in the absence of the ten year minimum, Zapata would have been subject to a Sentencing Guidelines' range of 87-108 months.² In his plea colloquy, Zapata did not admit to any quantity of drugs.

Zapata, relying on Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and United States v. Williams, 194 F.3d 100 (D.C.Cir.1999), asserts that there was a nonfrivolous ground for appeal. He notes that he was sentenced to a mandatory minimum — ten years — based on a drug quantity determined by the district judge employing the preponderance of the evidence standard at a sentencing hearing. Zapata stresses that he never admitted involvement with a specific quantity of heroin in his plea colloquy or plea agreement. He points out that the then-mandatory Sentencing Guidelines set a significantly lower punishment range for the conduct he did acknowledge. In essence, Zapata contends that, although Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was not decided until one year after his plea, Jones and Williams signaled a growing concern that viewing the quantity of drugs involved in an offense as a sentencing factor and not as an element of the crime might raise serious Sixth Amendment concerns. Thus, Zapata asserts that the district court erred for, although the law in this circuit was clear at the time of his plea (see United States v. Monk, 15 F.3d 25, 27 (2d Cir.1994), overruled by United States v. Thomas, 274 F.3d 655, 663 (2d Cir.2001) (en banc)), its foundation had already weakened such that an appeal on the grounds asserted by Zapata would not have been frivolous. Finally, Zapata claims that he suffered prejudice due to Scolari's alleged failure to consult. He argues that he would have appealed on the basis of this non-frivolous issue, as there was no risk, and perhaps some benefit, in pursuing an appeal of his sentence.

In response, the government argues that the district court correctly concluded that petitioner's counsel had no constitutional duty to consult with petitioner regarding an appeal as Zapata's contentions did not, at that time, present a non-frivolous ground for an appeal of his sentence. The government relies on McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), in which the Supreme Court held that a state sentencing guideline that imposed a mandatory minimum for possessing a firearm during the crime charged was a sentencing factor and not an element of the predicate offense. See id. at 85-86, 106 S.Ct. 2411. The firearm factor raised the mandatory minimum, but that minimum was within the sentencing ranges dictated for the underlying crime. See id. at 82 & n. 1, 106 S.Ct. 2411. The government argues that Jones clearly did not abrogate the holding in McMillan because the Court explicitly recognized that the mandatory minimum in McMillan, unlike the mandatory minimum in Jones, did not increase the statutory maximum — a distinction also noted in Apprendi and Williams. See Jones, 526 U.S. at 242-43 & n. 6, 119 S.Ct. 1215; see also Apprendi, 530 U.S. at 490, 120 S.Ct. 2348; Williams, 194 F.3d at 107. As a result, the government asserts that any claim to the contrary at the time of Zapata's sentencing would have been frivolous. Indeed, the government reminds us that this Court observed in a post-Jones, pre-Apprendi decision that "[i]t has been the settled law of this and other Circuits that in crimes charged under 21 U.S.C. § 841, the quantity of the drug involved is not an element of the offense to be determined by the jury beyond a reasonable doubt." United States v. Thomas, 204 F.3d 381, 383 (2d Cir.2000), vacated, Thomas v. United States, 531 U.S. 1062, 121 S.Ct. 749, 148 L.Ed.2d 653 (2001), on remand, United States v. Thomas, 274 F.3d 655 (2d Cir.2001) (en banc). Finally, the government argues that the district court correctly concluded that petitioner was unable to establish prejudice because he could not show that, but for the alleged ineffective assistance of counsel, he would have appealed.

Flores-Ortega requires us to look backward at an area of federal criminal jurisprudence that has undergone a great deal of change in the last five years.³ However, we see no need at this point to express a view as to the correctness of the district court's legal analysis. To do so would be to address controverted legal issues that would be determinative for the petitioner only if the district court had concluded that Scolari failed to confer with Zapata about an appeal — a factual determination that the district court eschewed. The district court indicated that it would "assume for present purposes that Scolari did not consult with petitioner regarding an appeal." That assumption draws us to a task that might be avoided by findings of fact based on the evidentiary hearing...