USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1524

CARLOS ALBERTO BERRIO-CALLEJAS,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Stahl and Lynch, Circuit Judges.
______________

____________________

Carlos Alberto Berrio-Callejas on brief pro se.

______________________________
Guillermo Gil, United
_____________
Senior Litigation

Counsel,

States Attorney,
and Nelson

Jose A. Quiles-Espino
______________________

Perez-Sosa, Assistant

Uni

__________________
States Attorney, on brief for appellee.

____________________

NOVEMBER 12, 1997

____________________

Per Curiam.
Per Curiam

In

this appeal

denial of his petition for a

from the

district court's

summ

writ of habeas corpus under 28 U.S.C.

2255, Carlos Berrio-Callejas asserts, inter alia, that the court er

_____ ____

in implicitly

concluding that the

petition "and records of

the c

conclusively show that [he] is entitled to no relief," see id., on

___ ___

claim

of ineffective assistance of counsel.

contends that the record does

Specifically, petitio

not conclusively refute his

allegat

that trial counsel failed to perfect his notice of appeal, despite

instructions that she do

17,

23 (1st Cir.

1992).

so.

We

See Bonneau v. United States, 961 F

___ _______
______________

agree.

The

court had

no authority

credit petitioner's

counsel's letter over petitioner's,

v.

34

United States,
______________

F.3d

443,

445-46

(7th Cir.

cf. Casti
___ _____

1994),

as

apparently did

in resolving this

United States,
_____________

917 F. Supp.

addition,

in

suggests that

petitioner's claim.

We

(1)

125, 131-32 (D.

the court's summary of

Spanish)

counsel for

appointment under

the

Callejas
________

Puerto Rico 1996).

counsel's letter (which was writ

letter

does

not, in

fact,

ref

See id. at 131.

___ ___

therefore vacate

appoint

issue against him, see

___

and remand with instructions

petitioner

18 U.S.C.

if

he

3006A(g); and

that the co

qualifies for

(2) hold

such

an evidenti

hearing as to whether, and when, petitioner instructed counsel to f

a notice

renew his

of appeal,

see U.S.C.
___

alternative argument,

counsel was constitutionally

2255.

Should petitioner

made below but

not on

wish

appeal, t

ineffective in failing either to ask

whether he wanted to appeal or to inform him of his appeal rights,

Baker
_____

v. Kaiser, 929
______

constitutional

duties

F.2d 1495, 1499

along

(10th Cir.

these lines);

but
___

1991) (counsel

see
___

Castellanos
___________

United States, 26 F.3d 717, 719-20 (7th Cir. 1994) (appearing to pl

_____________

onus on

defendant to request

an appeal); United States

_____________

v. Peak,
____

F.2d

39, 41-42

entertain

it

(4th

(if the

Cir.

1993) (similar),

court

resolves

the

the

court should

remanded

issue

agai

petitioner) and make appropriate findings and rulings on it.1

In light

of how long

this petition has

should appoint counsel forthwith and endeavor

hearing as soon as possible.

Vacated and remanded.

Vacated and remanded.

been pending,

the co

to hold the evidenti

____________________

1We do not now address the remaining issues raised by the petition,
those issues can be raised on direct appeal

should the district co

reinstate petitioner's right to take such an appeal.

F.2d

at

23.

In the

petitioner's right to

event

the district

See Bonneau,
___ _______

court does

file a direct appeal, petitioner

not reinst
may renew

appeal of the court's rulings on these issues on collateral review.