US v. Saul Velascu

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:08-cr-00110-BO-1,7:10-cv-00023-BO Copies to all parties and the district court/agency. [998592061].. [10-7067]

Appeal: 10-7067

Document: 15

Date Filed: 05/18/2011

Page: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-7067

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAUL LOPEZ VELASCU,
Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (7:08-cr-00110-BO-1; 7:10-cv-00023-BO)

Submitted:

April 25, 2011

Decided:

May 18, 2011

Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Saul Lopez Velascu, Appellant Pro Se.
Joshua Bryan Royster,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 05/18/2011

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PER CURIAM:
Saul
court’s

Lopez

order

Velascu

denying

(West Supp. 2010)

seeks

relief

motion.

to

on
We

appeal

his

28

granted

the

district

U.S.C.A.
a

§

2255

certificate

of

appealability on Velascu’s claim that counsel was ineffective in
failing to note an appeal, as directed.
Velascu pleaded guilty to one count of conspiracy to
distribute

cocaine,

one

count

of

possession

with

intent

to

distribute cocaine, and one count of possession of firearms by
an illegal alien.

He did not appeal.

In his § 2255 motion,

Velascu claimed that he asked his counsel to file a notice of
appeal, and that his attorney agreed to do so.

Although Velascu

indicated in an “Acknowledgment of Appellate Rights and Election
Regarding

Appeal”

that

he

did

not

wish

to

file

an

appeal,

Velascu claims that his counsel informed him he needed to sign
that document in order for the appeal to go forward and that he
did so because he could not speak or understand English.
In

United

(4th Cir. 1993),

this

States

v.

Peak,

court

held

that

992
the

F.2d
Sixth

39,

41

Amendment

obligates counsel to file an appeal when her client requests her
to

do

so.

Failure

to

note

an

appeal

upon

timely

request

constitutes ineffective assistance of counsel regardless of the
likelihood of success on the merits.

Id. at 42.

Counsel who

consults with the defendant and fails to follow the defendant’s
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Appeal: 10-7067

express

Document: 15

Date Filed: 05/18/2011

instructions

unreasonable manner.

to

appeal

Page: 3 of 4

performs

in

a

professionally

See Roe v. Flores-Ortega, 528 U.S. 470,

477 (2000).

Unless it is clear from the pleadings, files, and

records

the

that

prisoner

is

not

entitled

to

relief,

makes an evidentiary hearing in open court mandatory.

§ 2255

28 U.S.C.

§ 2255(b); United States v. Witherspoon, 231 F.3d 923, 925-27
(4th Cir. 2000);

Raines

v.

United

States,

423

F.2d

526,

529

(4th Cir. 1970).
Here, Velascu’s claim that counsel failed to file a
notice of appeal when requested to do so, if believed, states a
colorable Sixth Amendment claim.

Velascu swore under penalty of

perjury that he expressed his desire to appeal and that counsel
directed him to sign the acknowledgment in order to do so.

This

statement

that

directly

contradicts

counsel’s

sworn

statement

she informed Velascu, through an interpreter, of his right to
file an appeal and he elected not to exercise that right. *
Because

resolution

of

competing

versions

of

events,

both made under oath, lies in the first instance within the
province of the district court, we vacate the district court’s
order and remand for determination of whether Velascu received

*

Counsel’s affidavit was submitted by the Government as an
exhibit to a pleading filed in this court.
Accordingly, the
district court did not have an opportunity to assess it in
proceedings prior to the present appeal.

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ineffective assistance of counsel, in light of the conflicting
affidavits.

Raines, 423 F.2d at 530 (“When the issue is one of

credibility, resolution on the basis of affidavits can rarely be
conclusive.”).

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials
before

the

court

and

argument

would

not

aid

the

decisional

process.
VACATED AND REMANDED

4