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United States District Court, S.D. New York

January 13, 2004.

PEDRO SALAS-SOTO, Plaintiff, -against-, UNITED STATES OF AMERICA, Defendant

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge


Petitioner Pedro Salas-Soto ("Salas-Soto") filed the instant 28 U.S.C. § 2255 habeas petition in which he claims he was denied his constitutional right to effective assistance of counsel and denied his right to appeal. The Government opposes both these contentions. For the reasons set forth below, the government's motion is granted in part and denied in part. Petitioner is directed to supplement the record in accordance with this opinion, if he so chooses.


  On April 18, 2002, Salas-Soto pleaded guilty to a one-count indictment which accused him of violating 8 U.S.C. § 1326(a) and (b)(2) by illegally re-entering the United States after having been deported subsequent to a conviction for an aggravated felony. On July 25, 2002, the Court sentenced Salas-Soto to 46 months' imprisonment, which was the bottom of the applicable Sentencing Guidelines range. See July 25, 2002 Sentencing Transcript [hereinafter "Tr."] 5. Salas-Soto made no downward departure motions prior to sentencing, although his attorney sent the Court a letter requesting a sentence at the bottom of the Guidelines range. See Government's Letter — Brief, Ex. C. (This letter noted that the reason he re-entered the United States was to be with his wife during a hysterectomy operation. See id.) Salas-Soto did not file a notice of appeal, despite having been advised by the Court at sentencing of his right to do so. See Tr. 6-7. Salas-Soto's first claim in his § 2255 petition is that "I did told [sic] my attorney to ask for down ward [sic] departure, because I am very sick, and getting blind and he did not apply for it." His second claim is that he was deprived his right to appeal because his lawyer never filed an appeal, despite allegedly having been asked and having agreed. Page 2

  By order dated January 16, 2003, this Court denied summary dismissal of Salas-Soto's petition and required the government to respond to it. The Government contends that there is neither factual nor legal bases for either claim. Although the order also permitted Salas-Soto to reply, he did not formally do so because he claimed he needed, but did not have, prison medical records that would substantiate his claim about his problem with his vision.*fn1 In response to letter dated July 11, 2003, in which the Court inquired about what medical records Salas-Soto sought and why they justified his delay in filing an opposition to the government's opposition to his petition, Salas-Soto explained in a letter dated August 11, 2003 that these records would support his contention that he has pain and loss of vision in his left eye. He again asserted that he told his lawyer, through an interpreter, of his condition and asked him to raise it as a basis for a downward departure. He stated that he continues to suffer pain and loss of vision in this eye, to the point that he is legally blind and the doctors at Fort Dix told him he has bleeding in his left eye. In this letter, Salas-Soto also noted that his attorney had (and has) no recollection of his eye problem, nor did he take any notes of the conversation. Salas-Soto also stated that he speaks very little English and relied completely on his attorney's assurances that he would take care of all questions and issues relating to his case, and that he never saw his PSR nor was told what the PSR said about his eye condition. On December 12, 2003, Salas-Soto forwarded copies of "relevant portions of his medical records." In a letter which accompanied the medical records, he also stated that he asked his attorney to seek a downward departure based on his medical condition and that he also told his attorney that he wanted to appeal his sentence.


  A. Failure to seek downward departure based on health

  Section 5H1.4 of the Sentencing Guidelines provides: "Physical condition . . . is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical impairment may be a reason to impose a sentence Page 3 below the applicable guidelines range. . . ." U.S.S.G. § 5H1.4 (emphasis added). The standards for a downward departure pursuant to § 5H1.4 are strict and generally are met only upon a showing that the Bureau of Prisons cannot accommodate the person's medical condition. See United States v. Martinez, 207 F.3d 133, 139 (2d Cir. 2000); United States v. Persico, 164 F.3d 796, 806 (2d Cir. 1999); United States v. Altman, 48 F.3d 96, 104 (2d Cir. 1995). Furthermore, the standards for an ineffective assistance of counsel claim are also very strict, requiring the petition to rebut the presumption that counsel's conduct was within the range of reasonable professional assistance and to show that his counsel's conduct fell below "an objective standard of reasonableness" under "prevailing professional norms." See Strickland v. Washington, 466 U.S. 668, 687-89, 693-94 (1984); United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990).

  In his § 2255 petition, Salas-Soto states that he is very sick and getting blind. In his letter of December 12, 2003, which accompanied the medical records, he described his condition and treatment as follows:

I first noticed a problem with the vision in my left eye in May 2002, while incarcerated at MCC New York. I asked to see a doctor at that time via cop-out, but I received no response after several requests. I mentioned the loss of vision at my interview for the Pre-sentence Report to both the probation officer and my attorney in early June 2002; at which time the loss of vision had gotten worse, and I was experiencing pain in the left eye. At that interview, I asked by attorney to seek a downward departure due to the problem with my eye; but as previously indicated, he did not do so at the time of my sentencing on July 25, 2002.
I was transferred to FC1 Fort Dix after my entencing and advised the medical staff here about my eye problem; but several months went by without an appointment being made for me to see a doctor about it. The pain and loss of vision got progressively worse and on 12/24/02, 1 went to sick call. I was told there that I would be seen by an Ophthalmologist and I was given Tylenol for the pain. I did no see the Ophthalmologist until July 14, 2003, and the problem was diagnosed as a "Central Retinal Vein Occlusion.". . . . I am still being treated for the condition and I am awaiting further tests to be done. But in the meantime, the problem is getting worse.
Although the medical evidence that Salas-Soto recently provided demonstrates that he has a problem with his left eye, perhaps a severe one, it is extremely doubtful that this condition reaches the standard in § 5H1.4 of the Sentencing Guidelines for a downward departure based on Page 4 a medical condition. See United States v. Martinez-Guerrero, 987 F.2d 618, 621 (9th Cir. 1993) (upholding denial of downward departure for a defendant who was legally blind where the evidence showed that the prison could accommodate his blindness). Accordingly, because it is a near certainty that any such request for a downward departure would have failed — especially since the sentencing occurred at the early stages of his condition*fn2 — Salas-Soto's contention that his attorney's representation was constitutionally deficient also must fail. He ineffective-assistance-of-counsel claim meets neither prong of the Strickland test — i.e., that it was objectively substandard and that it caused him prejudice. See McEwan v. United States, 279 F. Supp.2d 462, 465 (S.D.N.Y. 2003) ("Had counsel explicitly requested a downward departure on the grounds petitioner raises, this Court would have denied that request, since there was no showing then and no showing now that the Bureau of Prisons is not fully equipped and capable of ministering to petitioner's medical needs. Petitioner's medical complaints did not rise to the level of an `extraordinary physical impairment' within the intendment of U.S.S.G. § 5H1.4.").

  B. Failure to file an appeal

  Salas-Soto's second claim in his habeas petition — that he was denied effective assistance because his lawyer failed, despite having been requested, to file a notice of appeal — is closer. The Government relies on a declaration submitted by Salas-Soto's trial counsel that appears to rebut Salas-Soto's claim that he requested a notice of appeal. The Government further contends that a hearing is unwarranted to resolve this issue because there is no factual support for Salas-Soto's allegation and that his trial attorney's declaration is uncontroverted. I disagree.

  Section 2255 provides: "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to Page 5 be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law." 28 U.S.C. § 2255; see also Chang v. United States, 250 F.3d 79, 84 (2d Cir. 2001). Stated another way, a habeas petition must demonstrate a colorable claim in order to be granted a hearing on the petition. See Chang, 250 F.3d at 84; United States v. Tarricone, 996 F.2d 1414, 1417-18 (2d Cir. 1993). In an ineffective assistance claim based on failure to file a notice of appeal, "a lawyer who disregards a defendant's specific instructions to file an appeal acts in a manner that is professionally unreasonable," and prejudice is presumed. See Garcia v. United States, 278 F.3d 134, 137 (2d Cir. 2002); Hernandez v. United States, 202 F.3d 486, 488-89 (2d Cir. 2000). Thus, if Salas-Soto is correct that his lawyer failed to file his requested notice of appeal, he is well on his way to satisfying the two Strickland prongs, and at the very least he has stated a colorable claim.

  The Government nevertheless contends that dismissal is appropriate here based on Salas-Soto "s attorney's representations and because "Salas-Soto has presented no affidavit or other evidence to support his claim." In response to Salas-Soto's assertion that he asked his attorney to file an appeal, his attorney, Steven M. Statsinger, submitted a declaration in which he stated:

I have no specific recollection of my discussion with Mr. Salas-Soto regarding his appeal rights. However, my ordinary practice with respect to filing a notice of appeal is as follows: . . . In cases like Mr. Salas-Soto's, where there are no disputed legal or factual issues that need to be resolved at sentencing, I tell the client that, if the Court imposes a sentence within or below the anticipated range and, in my judgment, commits no legal error in the imposition of sentence, I will not file a notice of appeal unless directed to by the client. I always file a notice of appeal if client instructs me to, even if I believe that there is no appealable issues.
Although Statsinger did not recall whether Salas-Soto requested him to file a notice of appeal, he stated in his declaration that he received a letter dated Sept. 27, 2002, from Salas-Soto about the status of his appeal, to which Statsinger responded as follows:

  As you will recall, before your [sic] were sentenced, I told you that I would not file a notice of appeal in your case if your sentence was within the correct range and the judge made no legal errors in its imposition, unless you expressly directed me to do it. Since no errors were made in your sentence, and since you did not Page 6 tell me to appeal the case, I did not file a notice of appeal.

 On the other hand, in his letter of December 12, 2003, Salas-Soto stated that he asked his attorney to file an appeal.

  Under these circumstances a hearing is unnecessary. The Second Circuit recently analyzed when a hearing is required for a habeas petition in Chang v. United States, 250 F.3d 79 (2d Cir. 2001). In Chang, the Second Circuit reviewed the dismissal of a § 2255 petition where the district court denied a hearing on petitioner's claim, which was based, as here, on ineffective assistance of counsel.*fn3 Although Second Circuit indicated a preference that district courts hold hearings rather than summarily dismiss habeas petitions, the Second Circuit held that the district court did not abuse its discretion in denying the hearing and instead relying on the attorney's "detailed" and "credibl[e]" affidavit. See id. at 85. Although I see no reason to doubt Salas-Soto's statement that he made this request — indeed, Statsinger in his attestation does not specifically deny that such a request was made, but doubts it given his practice to honor such requests — his claim lacks much in the way of specifics, nor was it made in the form of an affidavit. Cf. id. at 86 (finding that a hearing was not required where petitioner submitted an affidavit that contained a generic claim "based solely on [petitioner's] own highly self-serving and improbable assertions"). Moreover, although prejudice is to be presumed, it is extremely difficult to see where there would be any prejudice in this case — Salas-Soto pled guilty and was sentenced at the lowest end of the Sentencing Guidelines range, and the only other claim that he has raised has been found to be without merit. Although I do not discern any possible basis for petitioner to show any prejudice from Statsinger's alleged failure to file an appeal, I will grant him until February 27, 2004 to submit an affidavit that indicates what issue or issues he intended then and intends to advance on an appeal. Furthermore, he should include in this affidavit the details, as explicitly as he can recall, about the circumstances — e.g., the substance of the conversation and when and where it occurred — concerning his request that Statsinger file a notice of appeal. If Salas-Soto fails to submit an affidavit to this effect by that deadline, his petition will be denied and the writ dismissed. If he submits an affidavit, the Court will Page 7 determine what, if any, further steps are appropriate.


  For the foregoing reasons, the government's motion is granted in part and denied in part. Petitioner is directed to supplement the record in accordance with this opinion, if he so chooses.


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