Rojas-Medina v. United States

• Decision Date: 16 May 2019
• Docket Number: No. 18-1150,18-1150
• Citation: 924 F.3d 9
• Parties: Toribio ROJAS-MEDINA, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

924 F.3d 9

Toribio ROJAS-MEDINA, Petitioner, Appellant,

v.UNITED STATES of America, Respondent, Appellee.

No. 18-1150

United States Court of Appeals, First Circuit.

May 16, 2019

Franco L. Pérez-Redondo, Research & Writing Attorney, with whom Eric A. Vos, Federal Public Defender, and Vivianne M. Marrero-Torres, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for petitioner.

Antonio L. Pérez-Alonso, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for respondent.

Before Torruella, Selya, and Lynch, Circuit Judges.

SELYA, Circuit Judge.

In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the Supreme Court held that, as a matter of constitutional law, a defense attorney has a duty to consult with a client about an appeal either when a particular defendant reasonably demonstrated to the attorney that he was interested in appealing or when the circumstances are such that a rational defendant would want to appeal. See id. at 480, 120 S.Ct. 1029. The Court went on to hold that when an attorney violates this duty, a presumption of prejudice arises. See id. at 483, 120 S.Ct. 1029. The appeal at hand requires us, for the first time, to apply the Flores-Ortega presumption of prejudice in circumstances in which the defendant has previously executed a plea agreement containing a waiver-of-appeal provision. Mindful of the teachings of both Flores-Ortega and Garza v. Idaho, ––– U.S. ––––, 139 S. Ct. 738, 203 L.Ed.2d 77 (2019), we reverse the district court’s dismissal of petitioner-appellant Toribio Rojas-Medina’s petition for post-conviction relief and direct the district court, on remand, to afford him an appropriate opportunity to file a timely notice of appeal.

I. BACKGROUND

The petitioner is a monolingual Spanish speaker who is a native and citizen of the Dominican Republic. On November 23, 2015, a federal grand jury sitting in the District of Puerto Rico returned a three-count indictment charging him with unlawfully transporting noncitizens (count 1), unlawful reentry into the United States by a deported noncitizen (count 2), and failure to heave to a vessel (count 3). See 8 U.S.C. §§ 1324(a)(1)(A)(i), 1326(b)(1) ; 18 U.S.C. § 2237(a)(1). Roughly three months later, the petitioner entered into a plea agreement (the Agreement), wherein he agreed to plead guilty to count 2 (unlawful reentry into the United States by a deported noncitizen). In exchange, the government agreed to dismiss the other two counts. The Agreement memorialized, inter alia, the parties’ stipulation to a total offense level (TOL) of 21, but contained no stipulation as to the petitioner’s criminal history category (CHC).

In a section of the Agreement entitled "SENTENCING RECOMMENDATION," the parties agreed that they would "recommend a sentence at the lower end of the applicable Guideline Sentencing Range." The parties further agreed that the petitioner "may request that [his] sentence run concurrently with any pending state sentence or state revocation sentence that may be imposed as a result of the current criminal conduct," and "may also argue for a downward departure" on the basis "that his [CHC] substantially overrepresent[ed] the seriousness of [his] criminal conduct or the likelihood that [he] will commit other crimes." Of particular pertinence for present purposes, the Agreement contained a waiver-of-appeal provision under which the petitioner surrendered the right to appeal his conviction and sentence, "provided that [he was] sentenced in accordance with the terms and conditions set forth in the Sentence Recommendation provisions of [the Agreement]."

A probation officer prepared the presentence investigation report (PSI Report). Consistent with the Agreement, the probation officer recommended a TOL of 21. She assessed the petitioner eight criminal history points, placing him in CHC IV. The recommended guideline sentencing range (GSR) was 57 to 71 months.

Neither party objected to the guideline calculations limned in the PSI Report. The petitioner’s then-counsel (whom we shall call "trial counsel") filed a sentencing memorandum in which he urged the district court to vary downward and sentence the petitioner based on a CHC of III. Specifically, trial counsel sought a sentence of 46 months, which fell at the bottom of the GSR for a TOL of 21 and a CHC of III. Trial counsel also requested that the sentence "run concurrently with any pending state sentence."¹

Prior to sentencing, a different probation officer approached trial counsel, told him that the PSI Report had miscalculated the petitioner’s CHC, and said that two additional criminal history points would be added. These additional points served to elevate the petitioner from CHC IV to CHC V.

The district court convened the disposition hearing on May 13, 2016. The court asked trial counsel whether he needed additional time to prepare, given the change in the probation officer’s CHC calculation. Trial counsel said that he did not need extra time, reasoning that "by adding two additional points, it would only strengthen my position as to the overrepresentation of [the petitioner’s] criminal history." He added that he would still be able to pursue his request for a downward departure.² He then presented his argument for a 46-month sentence. The government made clear that it was "not objecting or arguing against" such a sentence, which was "discussed as part of the plea negotiations." Rather, the government was "standing by the [Agreement]" and "recommending a sentence at the lower end of the applicable guideline range based on a [TOL] of 21, according to the [CHC] that the Court accepts."

When all was said and done, the district court adopted the probation officer’s revised recommendation, assessed ten criminal history points, and placed the petitioner in CHC V. Using the agreed TOL of 21, the court set the GSR at 70 to 87 months. It proceeded to impose a 70-month term of immurement to run consecutively vis-á-vis any state sentence that might be imposed. Trial counsel immediately objected.

Upon completion of the sentencing proceeding, trial counsel had a two-minute conversation with the petitioner at the courthouse cellblock. After this brief chat, the two never spoke again. Judgment entered on May 13, 2016 — the same day that trial counsel filed a so-called "Motion to Reconsider Sentence." The motion papers contended that the 70-month sentence was "extremely harsh" and "greater than necessary to fulfill the purposes of sentencing under [ 18 U.S.C. §] 3553(a)." Three days later, the district court summarily denied the motion. Trial counsel did not file a notice of appeal, and the fourteen-day appeal period expired on May 27, 2016. At that time, the petitioner was not aware that trial counsel had filed a motion for reconsideration, nor was he aware that it had been denied.

The petitioner was shuttled among several different correctional facilities following the imposition of sentence. After arriving at his destination in mid-July, he wrote to the district court requesting a copy of his docket sheet. The petitioner stated that he was "in the process of a[n] appeal" and needed "certain information." The court granted his request on August 2, 2016. Upon receiving the docket sheet, the petitioner realized for the first time that a notice of appeal had not been filed on his behalf. With the help of another inmate, he filed a pro se petition to vacate his sentence pursuant to 28 U.S.C. § 2255, claiming that trial counsel was ineffective for failing to file a notice of appeal.

The district court referred the section 2255 petition to a magistrate judge. See 28 U.S.C. § 636(b)(1)(B) ; Fed. R. Civ. P. 72(b)(1). After appointing post-conviction counsel, the magistrate judge held an evidentiary hearing. Both the petitioner and trial counsel testified about the details of their two-minute cellblock conversation. According to the petitioner, he "asked the attorney why they had given me so much time" and made it plain that all along, he had "wanted to appeal because the sentence was too high." The petitioner testified that trial counsel replied that the sentence "could not be appealed." When the petitioner insisted that "there had to be a way," trial counsel advised him to file a section 2255 petition.

Trial counsel offered a somewhat different version. He recalled "discussing ... the changes to the [PSI Report] and why [the court] finally made the determination that it did." He thought that he had "mentioned" filing a motion for reconsideration, but he did not "think [he and the petitioner] ever agreed to it." Importantly, trial counsel claimed to have told the petitioner that although "there was a waiver of appeal, ... if [the petitioner] thought that there was anything that could be appealed, that he had fourteen days and had to inform me so that I could file something."

The magistrate judge reserved decision and subsequently issued a report and recommendation, recommending that the petitioner’s ineffective assistance claim should be granted and that he should be allowed an appropriate opportunity to perfect a delayed appeal. The magistrate judge found that although the petitioner had not explicitly instructed trial counsel to file a notice of appeal,³ he had manifestly demonstrated an interest in appealing sufficient to trigger trial counsel’s constitutional duty to consult. The magistrate judge then concluded that, "[e]ven fully crediting [trial counsel’s] testimony, his discussion with [the petitioner at the cellblock] still did not meet the Supreme Court’s requirement for a consult." Building on this foundation, the magistrate judge ruled that the Flores-Ortega presumption of prejudice, see 528 U.S. at 483, 120 S.Ct. 1029, applied even though the petitioner had signed an appeal waiver. Thus, what remained was ...