Tuesday, December 6th, 2005

Further Fact-Finding Required on IAC Claim

Zapata v. United States, Docket No. 01-2575 (2d Cir. Dec. 6, 2005) (Sotomayor, Parker, Wesley): The Circuit vacates the district court’s denial of a § 2255 petition, based on Zapata’s IAC claim that trial counsel failed to consult with him about the possibility of an appeal following his 1999 sentencing, for lack of fact-finding on the critical question. The district court denied the petition on the theory that even assuming that counsel failed to consult with Zapata about an appeal, “petitioner is unable to demonstrate that his attorney had a duty to consult with him regarding his right to appeal.” Op. at 2-3. The Circuit didn’t want to play this “assumption” game, however, because it would present the following Hobson’s choice: (1) “[i]f we accept the assumption, we must engage in extensive legal reasoning predicated on a fact not yet determined”; or (2) “[i]f we reject the assumption, we must make an independent factual determination — an endeavor for which appellate courts are not optimally situated.” Op. at 3. The Court thus remands for a definitive fact-finding concerning whether trial counsel consulted with Zapata about an appeal following sentencing.

The substantive issue involved in Zapata’s case is gut-wrenching for those who practiced in the dark days before Apprendi and simply assumed that our clients (like Zapata) could be sentenced to a 10-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A) even though drug quantity was neither alleged in the indictment, admitted by the defendant, nor found by a jury. Assuming that trial counsel did not consult with Zapata about the appeal, the IAC question becomes whether a reasonably competent attorney would have believed that there was a non-frivolous Sixth Amendment challenge to the 10-year sentence on appeal — in 1999. That is indeed a question whose answer would involve “extensive legal reasoning”.

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