UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-30247
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BOBBI HOLLOMAN, also known as Bobbi Moseley,
also known as Bobbi Hoover,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
(96-CV-345)
November 6, 1996
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
BACKGROUND
An indictment charged Bobbi Holloman and others with
conspiring to manufacture methamphetamine, and with distribution of
methamphetamine. Holloman pleaded guilty to a one-count
*
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
superseding bill of information that charged her with attempted
possession with intent to distribute more than 100 grams of a
mixture or substance containing methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and 846. The district court sentenced Holloman
to 57 months imprisonment and five years supervised release. The
court advised Holloman of her right to appeal, to the appointment
of counsel, and to a copy of the transcripts.
Approximately three months later, Holloman filed a pro se
notice of appeal, stating that her court-appointed counsel never
advised her that she had a right to appeal. This Court dismissed
the appeal for lack of jurisdiction but stated that Holloman could
seek an out-of-time appeal by filing a motion pursuant to 28 U.S.C.
§ 2255 in the district court.
Through appointed counsel, Holloman filed the instant motion
for relief under § 2255, alleging that she had received ineffective
assistance at sentencing and on appeal. Holloman argued that trial
counsel failed to object to the use of the “d-methamphetamine”
standard for computing her base offense level and to request a
downward adjustment for her mitigating role in the offense.
Holloman also contended that her trial counsel did not advise her
of her right to appeal, the applicable time limits, or her right to
appointed counsel. Consequently, she argued that she was denied
her right to a direct appeal.
In its answer, the Government argued that counsel was not
ineffective because there was no rational basis for counsel to have
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objected to the basis of the drug or on the basis of Holloman’s
role in the offense, an offense Holloman herself committed. The
Government further argued that Holloman had not alleged that she
had asked her attorney to file an appeal. Absent such an
allegation, the Government argued, the district court need not
consider whether an out-of-time appeal was appropriate.
The district court determined that no evidentiary hearing was
required and dismissed the motion. The court determined that
Holloman’s contention that her counsel was ineffective for failing
to object to the basis of the drug was disingenuous and that her
contention regarding her role in the offense was precluded by this
court’s prior precedent. Finally, the court noted that Holloman
had not suggested or alleged that she had ever asked trial counsel
to file an appeal on her behalf. Because the court had advised
Holloman of her right to appeal her sentence and because she had
not alleged that she requested an appeal, the court concluded that
Holloman had waived her right of appeal and that counsel had not
been ineffective in failing to file the notice of appeal.
Holloman filed a motion for reconsideration which included her
affidavit in which she attested that:
Upon completion of my sentencing hearing, I asked
my lawyer, John Simmons, “If there was any thing
else that could be done?” His reply, to me and my
husband (Larry Moseley), was, “No, that’s it.”
It was my belief, from this conversation, that he
meant that I had no other choice than to accept the
Court’s decision.”
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Mr. Simmons, my attorney, never counseled me as to
the fact that I could appeal.
The district court denied the motion for reconsideration,
noting that Holloman still had not indicated that she had asked
counsel to file an appeal on her behalf.
Holloman timely appealed.
OPINION
Holloman argues that her counsel failed to advise her of her
right to appeal, the time limits, or her right to appointed
counsel. She concedes that she “has never asserted that she
specifically asked that an appeal be filed on her behalf,” but she
contends that her trial counsel never counseled her as to the
process and procedures for an appeal. Holloman argues that as a
result of her trial counsel’s errors, she was denied the
opportunity to raise her claim about the type of methamphetamine
that should have been used in calculating her sentence.
A criminal defendant has a constitutional right to effective
assistance of counsel in her first appeal as of right. See Evitts
v. Lucey, 469 U.S. 387, 393-95 (1985). The failure of counsel to
perfect an appeal upon request of his client may constitute
ineffective assistance of counsel. See United States v. Gipson,
985 F.2d 212, 215 (5th Cir. 1993). The standard Strickland v.
Washington ineffective-assistance-of-counsel analysis is not
performed when there has been actual or constructive complete
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denial of any assistance of appellate counsel. Sharp v. Puckett,
930 F.2d 450, 451-52 (5th Cir. 1991) (citing Penson v. Ohio, 488
U.S. 75 (1988)).
"In the context of the loss of appellate rights, prejudice
occurs where a defendant relies upon his attorney's unprofessional
errors, resulting in the denial of his right to appeal." Gipson,
985 F.2d at 215. "If a petitioner can prove that the ineffective
assistance of counsel denied him the right to appeal, then he need
not further establish -- as a prerequisite to habeas relief -- that
he had some chance of success on appeal." Id. In such cases,
prejudice is presumed and neither the Strickland prejudice test nor
the harmless-error test is appropriate. Sharp, 930 F.2d at 452;
but cf. Gipson, 985 F.2d at 215-17 (applying a Strickland prejudice
analysis to the review of a case in which it was established that
the convicted defendant informed his retained counsel of his desire
to appeal and the attorney failed to perfect an appeal).
An attorney’s role “is to provide information on how to appeal
and the opportunity to do so. . . . The Constitution requires that
‘the client be advised not only of his right to appeal, but also of
the procedure and time limits involved and of his right to
appointed counsel on appeal.’” United States v. Faubion, 19 F.3d
226, 231 (5th Cir. 1994). A defendant, therefore, is entitled to
relief if her court-appointed counsel failed to inform her properly
of her appellate rights, including her right to appeal, the
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procedure and time limits involved, and the right to appointed
counsel on appeal. Gipson, 985 F.2d at 216-17; Norris v.
Wainwright, 588 F.2d 130, 134-35 (5th Cir.), cert. denied, 444 U.S.
846 (1979). If the defendant has been informed of her right to
appeal by her attorney and does not make known to her attorney her
desire to pursue an appeal, she has waived her right to appeal, and
a claim of ineffective assistance of counsel will not lie. Gipson,
985 F.2d at 216.
A district court may deny a § 2255 motion without a hearing or
further proceedings "only if the motion, files, and records of the
case conclusively show that the prisoner is entitled to no relief."
United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992). The
record in this case does not demonstrate conclusively that Holloman
is not entitled to relief. "[T]his Court's policy has been
strongly in favor of the position that a waiver will not be assumed
unless the facts clearly support such an assumption." See Chapman
v. United States, 469 F.2d 634, 637 (5th Cir. 1972) (defendant who
waited four years after the judgment of conviction to allege that
he had been denied his right to appeal entitled to an evidentiary
hearing). Holloman’s allegation that counsel failed either to
inform her of her appellate rights or to file a notice of appeal
was sufficient to trigger the district court’s obligation to hold
an evidentiary hearing. See Chapman, 469 F.2d at 636-37. We
vacate the judgment and remand for an evidentiary hearing to
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determine whether "there has been an actual or constructive
complete denial of any assistance of appellate counsel." See
Lombard v. Lynaugh, 868 F.2d 1475, 1480 (5th Cir. 1989); see
Bartholomew, 974 F.2d at 41.
We pretermit consideration of Holloman’s remaining claims
pending a determination on remand whether Holloman is entitled to
an out-of-time-appeal. See Mack v. Smith, 659 F.2d 23, 26 (5th
Cir. 1981).
If Holloman successfully proves her claim on remand,
Holloman’s judgment of conviction should be reinstated on the
district court’s docket and the date from which the time for
Holloman to file a notice of appeal shall run shall be the date of
such reinstatement. See id. If the district court determines that
Holloman is not entitled to an out-of-time appeal, the court should
reinstate its judgment denying Holloman’s § 2255 motion.
VACATED and REMANDED.
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