Soto v. U.S.

Decision Date21 July 1999
Docket NumberDocket No. 98-2178
Citation185 F.3d 48
Parties(2nd Cir. 1999) FERNANDO SOTO, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. August Term 1998
CourtU.S. Court of Appeals — Second Circuit

Appeal from a final order of the United States District Court for the Eastern District of New York (Charles P. Sifton, Chief Judge) denying Petitioner-Appellant's motion for post-conviction relief made pursuant to 28 U.S.C. § 2255. We hold that a sentencing court's failure to inform a defendant of his right to appeal is subject to harmless error analysis and remand for further proceedings.

Vacated and remanded.

TSOUCALAS, Judge, dissenting in a separate opinion.

Connie Fern Miller, Watkins Glen, NY, for Petitioner-Appellant.

Emily Berger, Assistant United States Attorney, Eastern District of New York, Brooklyn, NY (Zachary W. Carter, United States Attorney, Mark Lerner, Assistant United States Attorney, of counsel), for Respondent-Appellee.

Before: CALABRESI and STRAUB, Circuit Judges, and TSOUCALAS,*. Judge.

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 presentence 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 vacatur 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 (1908); Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1175 (2d Cir. 1995), cert. denied, 517 U.S. 1119 (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 Antiterrorism 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 (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 appealability 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 (1998); see also United States v. Talk, 158 F.3d 1064, 1068 (10th Cir. 1998), cert. denied, __ U.S. __, 119 S. Ct. 1079 (1999) (relying on Young and declining to question the validity of the certificate of appealability 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 (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 appealability 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....

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