WESLEY, Circuit Judge.
Hugo Galviz Zapata appeals from the district court's denial of his petition for a writ of habeas corpus. Zapata presses an ineffective assistance of counsel claim. In his pro se petition of November 9, 2000, Zapata asserted that his trial counsel, Lisa Scolari, failed to file a notice of appeal after being instructed to do so. In an affidavit filed in support of the petition, Zapata also alleged that Scolari failed to consult with him regarding an appeal of his sentence. The district court subsequently appointed counsel to represent Zapata and held an evidentiary hearing on March, 9, 2001, at which both Zapata and Scolari testified. Zapata testified that he "told Ms. Scolari that [he] would like to appeal." The district court found Zapata not credible as to this assertion and credited Scolari's testimony that it was her professional practice to file a notice of appeal whenever a client expressed an interest in appealing. The court therefore denied petitioner's claim that Scolari failed to execute an appeal as directed but allowed supplemental briefing on any remaining claims raised in the petition.
In a post-hearing letter submission, Zapata disagreed with the district court's conclusion that he had never asked Scolari to file a notice of appeal but pointed out to the court that it had not addressed the additional claim in his pro se petition, at ¶ 7, that Scolari had not consulted with him about an appeal and had "abandoned" him after sentencing. The government asserted in response that Zapata had "now alter[ed] his position" but maintained that the petition should be denied because Scolari had no duty to consult with Zapata about an appeal. In a memorandum and order issued on August 22, 2001, the district court dismissed Zapata's petition. The district court concluded that, even assuming that Scolari did not consult with Zapata regarding an appeal, "petitioner is unable to demonstrate that his attorney had a duty to consult with him regarding his right to appeal, or that he would have appealed but for counsel's failure to perform that duty."
The district court's willingness to assume a fact that was a necessary predicate to the court's effective assistance of counsel analysis presents us with a troubling choice. If we accept the assumption, we must engage in extensive legal reasoning predicated on a fact not yet determined. If we reject the assumption, we must make an independent factual determination — an endeavor for which appellate courts are not optimally situated. Thus, we remand the case for further fact-finding to determine whether Scolari did in fact fail to consult with Zapata regarding an appeal.
On July 7, 1999, Zapata pled guilty to conspiring to distribute and to possess with intent to distribute heroin as proscribed by 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. His plea agreement did not explicitly identify any particular quantity of heroin but stated that Zapata would be subject to a mandatory minimum of ten years pursuant to 21 U.S.C. § 841(b)(1)(A)(i), which applies only to "1 kilogram or more" of heroin. The plea agreement also indicated that, in the absence of the ten year minimum, Zapata would have been subject to a Sentencing Guidelines' range of 87-108 months.
Zapata, relying on Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and United States v. Williams, 194 F.3d 100 (D.C.Cir.1999), asserts that there was a nonfrivolous ground for appeal. He notes that he was sentenced to a mandatory minimum — ten years — based on a drug quantity determined by the district judge employing the preponderance of the evidence standard at a sentencing hearing. Zapata stresses that he never admitted involvement with a specific quantity of heroin in his plea colloquy or plea agreement. He points out that the then-mandatory Sentencing Guidelines set a significantly lower punishment range for the conduct he did acknowledge. In essence, Zapata contends that, although Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was not decided until one year after his plea, Jones and Williams signaled a growing concern that viewing the quantity of drugs involved in an offense as a sentencing factor and not as an element of the crime might raise serious Sixth Amendment concerns. Thus, Zapata asserts that the district court erred for, although the law in this circuit was clear at
In response, the government argues that the district court correctly concluded that petitioner's counsel had no constitutional duty to consult with petitioner regarding an appeal as Zapata's contentions did not, at that time, present a non-frivolous ground for an appeal of his sentence. The government relies on McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), in which the Supreme Court held that a state sentencing guideline that imposed a mandatory minimum for possessing a firearm during the crime charged was a sentencing factor and not an element of the predicate offense. See id. at 85-86, 106 S.Ct. 2411. The firearm factor raised the mandatory minimum, but that minimum was within the sentencing ranges dictated for the underlying crime. See id. at 82 & n. 1, 106 S.Ct. 2411. The government argues that Jones clearly did not abrogate the holding in McMillan because the Court explicitly recognized that the mandatory minimum in McMillan, unlike the mandatory minimum in Jones, did not increase the statutory maximum — a distinction also noted in Apprendi and Williams. See Jones, 526 U.S. at 242-43 & n. 6, 119 S.Ct. 1215; see also Apprendi, 530 U.S. at 490, 120 S.Ct. 2348; Williams, 194 F.3d at 107. As a result, the government asserts that any claim to the contrary at the time of Zapata's sentencing would have been frivolous. Indeed, the government reminds us that this Court observed in a post-Jones, pre-Apprendi decision that "[i]t has been the settled law of this and other Circuits that in crimes charged under 21 U.S.C. § 841, the quantity of the drug involved is not an element of the offense to be determined by the jury beyond a reasonable doubt." United States v. Thomas, 204 F.3d 381, 383 (2d Cir.2000), vacated, Thomas v. United States, 531 U.S. 1062, 121 S.Ct. 749, 148 L.Ed.2d 653 (2001), on remand, United States v. Thomas, 274 F.3d 655 (2d Cir.2001) (en banc). Finally, the government argues that the district court correctly concluded that petitioner was unable to establish prejudice because he could not show that, but for the alleged ineffective assistance of counsel, he would have appealed.
Flores-Ortega requires us to look backward at an area of federal criminal jurisprudence that has undergone a great deal of change in the last five years.
If Zapata did in fact fail to elicit any evidence on the issue of Scolari's consultation with him, it might well be that the district court's legal analysis was unnecessary as Zapata bore the burden of establishing the factual predicate for his claim. See Polizzi v. United States, 926 F.2d 1311, 1321 (2d Cir.1991); see also Williams v. United States, 481 F.2d 339, 346 (2d Cir.1973) ("It is hornbook law . . . that [under 28 U.S.C. § 2255] the burden of proof is on the party seeking relief."). However, we are wary of concluding, on the basis of a less-than-clear footnote, that the district court made a determinative finding of fact adverse to Zapata or was unable to conclude that Zapata had established a fact necessary to his claim. Cf. DeMarco v. United States, 415 U.S. 449, 450, 94 S.Ct. 1185, 39 L.Ed.2d 501 (1974) (per curiam) (noting that where ambiguity exists in a disputed factual issue courts of appeals should remand to the district court for initial disposition); Grimo v. Blue Cross/Blue Shield of Vt., 34 F.3d 148, 152-53 (2d Cir.1994) (remanding to the district court because factual record was inadequate for appellate review).
Curiously, the parties' briefs seem to ignore this essential question. Zapata does not argue that the district court's apparent finding against him was unclear or that the court would have clearly erred in finding that he had not met his burden in establishing a failure to consult. Consequently, the government nowhere addresses the question and does not urge us to affirm on this alternative ground. The government, however, would be hard-pressed to defend the district court's decision by urging this Court to find a fact that was briefly alluded to, but not definitely established, below. Although the government could concede the evidentiary point in Zapata's favor on appeal, we do not believe it has made such a concession.
Accordingly, we believe a remand for the limited purpose of determining whether Scolari consulted with Zapata is appropriate. A remand would allow the district court to state its fact-finding clearly. Cf. United States v. Kostakis, 364 F.3d 45, 52 (2d Cir.2004) (remanding for further fact-finding where "the district court did not find these facts; it simply assumed them to be true"). The trial court is better situated to make definitive findings of fact on the existing record. See Georgia v. Ashcroft, 539 U.S. 461, 491, 123 S.Ct. 2498, 156 L.Ed.2d 428 (2003). "Decisions as to whose testimony to credit and as to which of competing inferences to draw are entirely within the province of the trier of fact." Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 44 (2d Cir.2000).
For the reasons stated above, the district court's judgment of August 22, 2001, is VACATED, and the case is remanded for further proceedings consistent with this