UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50291
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
STEVE RICHARD SHOCKEY,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(A-95-CV-390)
December 18, 1996
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Pursuant to a plea agreement, Steve Richard Shockey
(“Shockey”), #60947-080 was convicted on his guilty plea of
possession with intent to distribute cocaine in violation of 21
*
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this opinion should not be published and is not precedent except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.
1
U.S.C. § 841 (a)(1) and using and carrying a firearm during and in
relation to a drug trafficking offense in violation of 18 U.S.C. §
924(c). Shockey was sentenced to 106 months’ imprisonment, five
years’ supervised release, a $25,000 fine and a $100 special
assessment.
Shockey did not seek a direct appeal from his conviction and
sentence; however, proceeding pro se, Shockey filed a motion
pursuant to 28 U.S.C. § 2255. Shockey argued that he was denied
his right to appeal and court-appointed counsel was ineffective for
failing to file a direct appeal, as well as alleging several
substantive errors.
The magistrate judge recommended that Shockey’s § 2255 be
denied, finding that Shockey waived his right to appeal because he
failed to pursue his appeal after the district court informed him
of his appellate rights. Further, the magistrate judge found that
counsel was not ineffective because Shockey failed to establish
that he was prejudiced by his counsel’s performance, as he could
have filed a pro se notice of appeal or obtained new counsel to
file an appeal but failed to do so. After conducting a de novo
review, the district court adopted the magistrate judge’s
recommendation and denied Shockey’s motion.
DISCUSSION
2
On appeal,1 Shockey argues, inter alia, that counsel was
ineffective for failing to file a direct appeal. A criminal
defendant has a constitutional right to effective assistance of
counsel in his 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). A defendant is entitled to relief if he
directed his attorney to take an appeal and counsel disregarded
those instructions. Id. at 216-17. If the defendant has been
informed of his right to appeal and does not make known to his
attorney his desire to pursue an appeal, he has waived that right,
and a claim of ineffective assistance of counsel will not lie. Id.
Failure by the attorney to file a notice of appeal does not
automatically evidence a denial of a defendant’s rights. Id. at
217 n.7.
Shockey alleged that he requested that counsel file a notice
of appeal but counsel refused, stating that Shockey had waived his
right to appeal. The district court determined that, although
Shockey alleged that he requested counsel to file an appeal and
counsel refused, Shockey was adequately advised at the
1
Assuming, without deciding, that the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214,
1220-21 (1996), requires a “certificate of appealability,” in this
case, it clearly merits a such a certificate.
3
rearraignment and sentencing hearings of his appellate rights. The
district court did not make a specific factual finding with regard
to whether Shockey requested that his attorney file a notice of
appeal.
The record reveals that Shockey was informed of his right to
appeal by the district court at sentencing. The court also
notified Shockey of his right to appeal in forma pauperis. The
district court advised Shockey of the time limit for filing a
notice of appeal, and the court referred to a letter from the court
which specifically outlined Shockey’s appellate rights.
However, we cannot determine from the record whether Shockey
in fact instructed his counsel to file an appeal.2 If Shockey did
request an appeal, counsel was obliged to preserve his right to
appeal. See Chapman v. United States, 469 F.2d 634, 636 (5th Cir.
1972).
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 Shockey
is not entitled to relief.
2
Shockey submitted a letter for the first time on appeal from
counsel in support of his position. When a party produces on
appeal evidence never presented in any form to the district court,
this court will not admit the evidence. Leonard v. Dixie Well
Service & Supply Inc., 828 F.2d 291, 296 (5th Cir. 1987).
4
Shockey argues on appeal that the district court erred by
failing to conduct an evidentiary hearing on his ineffective
assistance claim. Shockey’s allegation that counsel failed 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. “With regard to resolution of factual issue in a
Section 2255 case, this Court has held that contested fact issues
ordinarily may not be decided on affidavits alone, unless the
affidavits are supported by other evidence in the record.” United
States v. Hughes, 635 F.2d 449, 451 (5th Cir. Unit B 1981).
CONCLUSION
Based on the foregoing, we vacate the dismissal of Shockey’s
§ 2255 motion and remand this case to the district court for an
evidentiary hearing to 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). We pretermit consideration of Shockey’s remaining claims
pending a determination on remand whether Shockey is entitled to an
out-of-time appeal. See Mack v. Smith, 659 F.2d 23, 26 (5th Cir.
Unit A 1981).
If Shockey proves his claim on remand, Shockey’s judgment of
conviction should be reinstated on the district court’s docket.
The time for Shockey to file a notice of appeal shall run from that
5
date. See id. If the district court determines that Shockey is
not entitled to an out-of-time appeal, the court should reinstate
its judgment denying Shockey’s § 2255 motion. See id. Then, if
Shockey chooses to appeal, this Court may review his remaining
claims. See id.
VACATED and REMANDED.
6