UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-10131
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL FLORES OCHOA,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(4:96-CV-636-Y)
September 9, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Daniel Flores Ochoa appeals the district court’s denial of his
motion to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. We granted a certificate of appealability (“COA”)
on the issue of whether the district court properly disposed of
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR. R.
47.5.4.
Flores’s claim that he was denied effective assistance of appellate
counsel. This issue hinges on whether the district court should
have held a hearing to determine if Flores asked his counsel to
file a direct appeal. We remand so that the district court can
either hold such a hearing or explain why one is unnecessary.
I
The police arrested Flores and two codefendants after they
arranged for an undercover officer to transport a large load of
marijuana from Laredo to Dallas, took possession of the load, and
placed it in a garage belonging to one of the codefendants. Police
seized 314 pounds of marijuana from the garage. Subsequently, a
federal grand jury charged Flores and the two codefendants with
conspiracy to possess with the intent to distribute marijuana in
violation of 21 U.S.C. § 846 (count 1) and possession with intent
to distribute 100 kilograms or more of marijuana in violation of 21
U.S.C. § 841(a)(1) and 841(b)(1)(B) (count 2).
As part of a plea agreement, Flores plead guilty to count 2.
Flores’s presentence report noted that he faced a statutory minimum
of 60 months’ imprisonment for that count, but that, under § 5C1.2
of the United States Sentencing Guidelines, he qualified under the
“safety valve” provision of 18 U.S.C. § 3553(f). Under this
provision, Flores could be sentenced without regard to the
statutory minimum. As a result, the district court sentenced
Flores to 50 months’ imprisonment, a four-year term of supervised
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release, and a $50 mandatory special assessment. Flores did not
appeal.
A year later, Flores moved to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255, alleging that he had been denied
effective assistance of counsel because his lawyer, Paul Leech,
failed to file a notice of appeal and neglected to seek downward
departures under the safety valve provision and for Flores’s
mitigating role in the offense.
In its response to the motion, the government included an
affidavit from Leech. Leech swore that Flores, after consulting
with Flores’s wife, informed Leech that Flores did not wish to
appeal his sentence. Leech also testified that Flores had received
the benefit of the safety valve provision, and that, in Leech’s
professional judgment, Leech had no reason to request that Flores
be awarded a downward adjustment for having a mitigating role in
the offense.
Flores replied with an affidavit from his common-law wife,
Michelle De La Garza, stating that Flores and De La Garza decided
that Flores should file a direct appeal and discussed that decision
with Leech. De La Garza also averred in her affidavit that, after
she and Flores discussed their decision to appeal with Leech, she
believed that Leech would file such an appeal.
The district court denied Flores’s § 2255 motion without a
hearing and without making any specific findings of fact. The
court merely noted that after reviewing Flores’s motion, the
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government’s response, and Flores’s reply, “the motion should be
denied for the reasons stated in the government’s response.” After
Flores appealed, we granted a COA limited to the issue of whether
the district court properly disposed of Flores’s claim that he was
denied effective assistance of appellate counsel.
II
Flores contends that the district court erred in denying his
§ 2255 motion without a hearing, given the fact that there was
conflicting evidence over whether Leech had rendered effective
appellate assistance. In reviewing an order denying a § 2255
motion, we review a district court’s legal conclusions de novo and
its findings of fact for clear error. United States v. Gipson, 985
F.2d 212, 214 (5th Cir. 1993).
A criminal defendant has a Sixth Amendment right to effective
assistance of counsel in his first appeal of right. Evitts v.
Lucey, 469 U.S. 387, 387, 105 S. Ct. 830, 831, 83 L. Ed. 2d 821
(1985). An attorney’s failure to file a direct criminal appeal
despite the client’s request that one be filed constitutes
ineffective assistance of counsel. United States v. Guerra, 94
F.3d 989, 994 (5th Cir. 1996). As long as a movant can show that
he was denied the right to appeal due to ineffective assistance of
counsel, he does not have to establish that such an appeal might
have been successful. Gipson, 985 F.2d at 215. However, if the
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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 may not allege that his counsel provided
ineffective assistance. Id. at 216.
Section 2255 states that
[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no
relief, the court shall cause notice thereof to be served
upon the United States attorney, grant a prompt hearing
thereon, determine the issues and make findings of fact
and conclusions of law with respect thereto.
28 U.S.C. § 2255 (emphasis added). With regard to § 2255 motions
claiming ineffective assistance of counsel, we have directed
district courts to use a two-step inquiry. Friedman v. United
States, 588 F.2d 1010, 1015 (5th Cir. 1979). First, the district
court should examine the record in the case))as supplemented by the
judge’s “personal knowledge or recollection”))to determine if the
record conclusively negates the facts asserted by the movant. Id.
Second, the district court should decide whether the movant would
be legally entitled to post-conviction relief if his factual
allegations are true (at least those allegations not conclusively
refuted by the record or the judge’s personal knowledge or
recollection). Id. If the district court resolves these two
prongs in favor of the movant, Ҥ 2255 requires [it] to conduct an
evidentiary hearing on those factual allegations which, if found to
be true, would entitle the petitioner to post-conviction relief.”
Id.
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The Friedman test will generally require the district court to
conduct an evidentiary hearing when factual disputes exist between
the affidavits submitted by the movant and the government. May v.
Collins, 955 F.2d 299, 311 (5th Cir.) (citing Machibroda v. United
States, 368 U.S. 487, 494, 82 S. Ct. 510, 513, 7 L. Ed. 2d 473
(1962)), cert. denied, 504 U.S. 901, 112 S. Ct. 1925, 118 L. Ed. 2d
533 (1992). The district court may, however, resolve issues of
fact raised by conflicting affidavits by relying on other evidence
in the record. United States v. Hughes, 635 F.2d 449, 451 (5th
Cir. Unit B Jan. 1981); Owens v. United States, 551 F.2d 1053, 1054
(5th Cir.), cert. denied, 434 U.S. 848, 98 S. Ct. 155, 54 L. Ed. 2d
115 (1977).
In this case, the district court did not refer to any personal
knowledge or recollection as support in denying Flores’s motion,
nor did it mention any specific proof in the record. It simply
adopted the arguments made in the government’s response. Thus, the
only evidence we have regarding whether Flores asked Leech to file
a direct appeal consists of De La Garza and Leech’s respective
affidavits, and these affidavits plainly conflict. In her
affidavit, for instance, De La Garza testified that she and Flores
discussed their decision to file a direct appeal with Leech and
that, afterwards, “it was my understanding that [Leech] would be
filing the Appeal for” Flores. Conversely, in his affidavit, Leech
swore that Flores and De La Garza decided against a direct appeal.
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We discern no basis in the record for crediting Leech’s
affidavit over De La Garza’s. Certainly, the record does not
“conclusively negate” the facts alleged by Flores. Moreover, if
Flores is correct that he told Leech to file a direct appeal and
Leech failed to do so, then Flores is entitled to relief under
§ 2255.
Therefore, based on this record, we cannot say that “the
motion and the files and records of the case conclusively show that
[Flores] is entitled to no relief . . . .” Accordingly, we remand
so that the district court can hold an evidentiary hearing on
whether Flores asked his counsel to file a direct appeal or,
alternatively, explain why such a hearing is unnecessary.
REMANDED WITH INSTRUCTIONS.
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