On September 18, 2000, Petitioner Anthony Valletto filed a motion,
pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct the
sentence imposed upon him by this Court approximately one year
earlier.*fn1 In that motion, Petitioner included a number of
claims relating to both his conviction and sentence, including a claim
that he was denied effective assistance of counsel when his attorney
failed to file a timely notice of appeal on his behalf. On December 27,
2001, this Court denied Petitioner's motion with respect to each of his
claims save that relating to his attorney's failure to file a notice of
appeal. With regard to that claim, because his assertions were neither
patently frivolous nor conclusively refuted by the record, the Court
determined that Petitioner was entitled, pursuant to the Third Circuit's
decision in Solis v. United States, 252 F.3d 289
(3d Cir. 2001), to a mandatory evidentiary hearing. That hearing was
conducted on March 1, 2002, with Petitioner, his son and his former
attorney, Michael W. Kahn, Esq., appearing as witnesses. In addition, on
March 26, 2002, after the submission of briefs by both parties, oral
argument was held on Petitioner's motion.
Accordingly, the Court finds that Petitioner's trial attorney was
obligated to consult with Petitioner about the filing of an appeal and
that that attorney, by failing to take active steps to inform Petitioner
about the advantages of filing an appeal and to discern Petitioner's
wishes regarding that course of action, did not meet that obligation.
For those reasons, the Court holds that the conduct of Petitioner's trial
attorney fell below an objective standard of reasonableness and that
Petitioner has therefore satisfied the first prong of the test
articulated by Strickland and Flores-Ortega.