IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-40410
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GERMAN DUQUE,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(G-95-CV-457)
_________________________________________________________________
July 30, 1998
Before KING, SMITH, and PARKER, Circuit Judges.
PER CURIAM:*
Defendant-appellant German Duque appeals the district
court’s denial of his motion to vacate, set aside, or correct his
sentence. For the reasons set forth below, we vacate the
judgment of the district court and remand the case for an
evidentiary hearing on the issues of (1) whether Duque was
informed of his right to appointed counsel on appeal and (2)
*
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that this opinion should not be published and is not precedent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.
whether Duque was correctly informed of his right to appeal his
sentence.
I. FACTUAL & PROCEDURAL BACKGROUND
In November 1990, defendant-appellant German Duque, along
with several others, was indicted in a four-count indictment.
Duque was named in three of the counts: (1) conspiracy to
possess with intent to distribute more than five kilograms of
cocaine (Count One), (2) possession with intent to distribute
cocaine (Count Two), and (3) using and carrying a firearm during
and in relation to the drug trafficking crimes (Count Four).
Duque retained attorney John L. Mendoza to represent him.
Pursuant to a written plea agreement, Duque pleaded guilty
to Count One of the indictment. In exchange for the plea, the
government dismissed Counts Two and Four of the indictment,
agreed to stipulate that Duque accepted responsibility pursuant
to § 3E1.1 of the Sentencing Guidelines, and promised to
recommend that Duque be sentenced at the bottom end of the
appropriate Sentencing Guidelines range. In the plea agreement,
Duque acknowledged understanding that he faced a possible
sentence of ten years to life, followed by a minimum of five
years of supervised release, and a possible fine of up to
$4,000,000. Duque further stated that he understood that the
court could assess any lawful sentence, including the maximum.
2
Over Duque’s objections, the district court adopted the
recommendations contained in the Presentence Investigation Report
(PSR) and found that Duque’s base offense level should be
increased because a firearm was possessed during the commission
of the offense and because Duque was an organizer or manager of
the conspiracy. On April 11, 1991, the district court sentenced
Duque to 292 months of imprisonment followed by five years of
supervised release. The district court then informed Duque that
he might have the right to appeal the sentence and instructed him
to discuss that right with his attorney.1 The prosecutor further
informed Duque that he had ten days to file his notice of appeal.
Duque did not file a direct appeal, but in July 1995, he
filed a pro se motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255, alleging that he was
denied his right to appeal his sentence because his attorney
failed to appeal and did not explain why he had failed to do so.
Duque contended that Mendoza’s failure to appeal his sentence,
when he had not been relieved as counsel, violated his right to
effective assistance of counsel on appeal.
The government answered and requested that the court expand
the record to include an affidavit from Mendoza. The government
then moved for summary judgment, arguing that because, according
1
Duque apparently does not speak English well. A
translator was present during the proceedings, and Mendoza spoke
to Duque in Spanish.
3
to the affidavit, Mendoza adequately advised Duque of his right
to appeal, Duque waived that right by failing to assert it.
Duque responded that the statements in Mendoza’s affidavit were
untrue, and he attempted to refute them by filing his own
affidavit. Duque argued that
[t]he only reason Mendoza failed to appeal [his]
sentence, is the fact that the family failed to raise
enough money to meet Mendoza’s needs. Mendoza had a
duty to either file the Notice of Appeal, or bring the
problem to the attention of the Court.
In addition, both Duque’s wife and his sister filed affidavits
stating that they spoke to Mendoza after Duque’s sentencing
hearing about their remaining options. Although both admit that
Mendoza clearly advised them that he required more money in order
to pursue Duque’s appeal, Duque’s sister stated in her affidavit
that she told Mendoza that it would be difficult for them to pay
the money and that, after speaking to Mendoza, she was under the
impression that he would help her brother.
The magistrate judge recommended that Duque’s § 2255 motion
be denied, finding that because Duque was aware of both his right
to appeal and the ten-day time limit, he had waived his right to
appeal. Moreover, he noted that, even accepting all of the
statements in Duque’s affidavit as true, Duque had made no
assertion that anyone ever actually instructed Mendoza to file an
appeal.
Duque objected to the magistrate judge’s report and
recommendation, arguing that an evidentiary hearing was required
4
and that his affidavit indicated that he made clear to Mendoza
that he wanted to appeal his sentence. The district court
nevertheless accepted the report and recommendation of the
magistrate judge and denied Duque’s § 2255 motion. Duque timely
filed his notice of appeal.2
II. STANDARD OF REVIEW
“In challenges to district court decisions under 28 U.S.C.
§ 2255, we measure findings of fact against the clearly erroneous
standard and questions of law de novo.” United States v.
Faubion, 19 F.3d 226, 228 (5th Cir. 1994). A district court’s
conclusions regarding a petitioner’s claim that he received
ineffective assistance of counsel are “mixed questions of law and
fact and, thus, also subject to de novo review.” Id. We will
generally uphold a district court’s factual finding that the
defendant waived his right to appeal unless it is clearly
erroneous. United States v. Gipson, 985 F.2d 212, 216 (5th Cir.
2
On June 9, 1997, Duque’s appeal was dismissed for want
of prosecution for failure to pay the docketing fee within the
time fixed by the rules. In July 1997, this court granted
Duque’s unopposed motion to reinstate the appeal. The district
court thereafter granted Duque permission to proceed in forma
pauperis and granted him a certificate of appealability (COA) “on
the sole issue of whether his retained trial counsel rendered
ineffective assistance by failing to pursue a direct appeal from
Duque’s conviction.” However, the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2253, does not
apply to § 2255 petitions filed prior to April 24, 1996. See
Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997). As Duque filed
his § 2255 motion in July 1995, he did not need a COA in order to
appeal its denial; the district court’s issuance of a limited COA
is therefore irrelevant. See United States v. Roberts, 118 F.3d
1071, 1072 (5th Cir. 1997).
5
1993). “However, we are not bound to accept the district court’s
finding of waiver if it was influenced by an incorrect view of
the law.” Id.
III. DISCUSSION
To prevail on a claim of ineffective assistance of counsel,
a petitioner must show that his counsel’s performance was both
deficient and prejudicial. Strickland v. Washington, 466 U.S.
668, 690, 692 (1984); Gipson, 985 F.2d at 215. In order to
demonstrate deficient performance, the petitioner must show that
his counsel’s actions “fell below an objective standard of
reasonableness.” Id. at 688. However, “a petitioner need not
prove prejudice under Strickland when the actions complained of
resulted in the actual or constructive denial of the assistance
of counsel altogether.” Childs v. Collins, 995 F.2d 67, 68 (5th
Cir. 1993); see also Gipson, 985 F.2d at 215 (“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.”).
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, 393-96 (1985); Hamilton v.
McCotter, 772 F.2d 171, 181 (5th Cir. 1985). Thus, “[i]f a
petitioner can prove that the ineffective assistance of counsel
denied him the right to appeal, then he need not further
6
establish--as a prerequisite to habeas relief--that he had some
chance of success on appeal.” Gipson, 985 F.2d at 215.
Appellate counsel’s role is to “provide information on how
to appeal and the opportunity to do so,” but it is up to the
client “to make the final decision as to take or not take the
appeal.” Faubion, 19 F.3d at 231. Thus, “[a] defendant properly
informed of his appellate rights may not ‘let the matter rest,’
and then claim that he did not waive his right to appeal.”
Norris v. Wainwright, 588 F.2d 130, 134-35 (5th Cir. 1979)
(citation omitted) (quoting Worts v. Dutton, 395 F.2d 341, 344
(5th Cir. 1968)); see also Childs, 995 F.2d at 69 (quoting
Norris). This is so because the right to appeal
is not a negative right to be used as a shield against
government intrusion. Instead, it is a positive right
that must be affirmatively exercised. Consequently,
waiver of the right to appeal requires only that there
be a knowledge of the right to appeal and a failure to
make known the desire to exercise that right.
Childs, 995 F.2d at 69.
Duque claims that “Mr. John Mendoza advised [him that] he
had no ground for an appeal, whithout [sic] any explaination
[sic]. The defendant did not know how or when to exercise his
right to appeal, because his lawyer . . . refused to take an
appeal, when it was not his choice.” Construing Duque’s argument
broadly in deference to his pro se status, he raises two points
7
of error that we must address.3 See Maleng v. Cook, 490 U.S.
488, 493 (1989); Pleasant v. Texas, 134 F.3d 1256, 1258 (5th Cir.
1998). First, it appears that Duque may not have been informed
of his right to appointed counsel on appeal; second, it is not
clear whether Duque was fully or correctly informed of his right
to appeal his sentence.
The government asserts that there was no ineffective
assistance of counsel because “Duque was advised of the right to
appeal, the procedure for perfecting appeal, and the time limit
for perfecting it.” However, the government makes no mention of
whether Duque was ever informed of his right to appointed counsel
on appeal. The government also contends that Mendoza’s advice
regarding Duque’s right to appeal his sentence was reasonable.
We address each of these issues in turn.
First we consider whether an evidentiary hearing is
necessary to determine whether Duque was adequately informed of
his right to appointed counsel on appeal if he could not afford
to retain counsel at his own expense. At the sentencing hearing,
the district court stated that Duque “may well have the right to
appeal the sentence” and instructed him to confer with his
3
Duque also raises several substantive points of error
regarding his sentence and his counsel’s performance at the
sentencing hearing. As we conclude that Duque is entitled to an
evidentiary hearing to determine whether he should be granted an
appeal out-of-time, we do not address these issues. Should Duque
be entitled to an appeal out-of-time, he may raise in that
proceeding any points of error that he has properly preserved for
appeal.
8
attorney about what his rights were and “what the best course of
action would be.” In addition, the prosecutor reminded Duque of
the ten-day time limit. However, there is no indication in the
record that the court informed Duque that, on appeal, he was
entitled to be represented by appointed counsel if he could not
afford to hire an attorney.4 Moreover, in his affidavit, Mendoza
does not claim to have informed Duque of his right to appointed
counsel on appeal.
Finally, the report and recommendation of the magistrate
judge indicates that he did not consider whether Duque was
informed of his right to appointed counsel. The report states,
“Duque knew of his right to appeal and knew of the ten day period
of time in which to exercise it; the District Court provided this
information at sentencing. This is all the Constitution
requires.” However, we have held that the Constitution requires
4
In fact, the only mention the court ever made of
Duque’s right to counsel on appeal was in the following statement
at the rearraignment:
[I]n the event that I elect to depart from the
guidelines either upwards or downward, let me admonish
you that you would have the right to appeal in certain
circumstances and you would, of course, have the right
to counsel and the assistance of counsel in the
preparation of any such appeal[.]
This statement alone was not adequate to notify Duque of his
right to appointed counsel on appeal because the court mentions
only Duque’s right to appeal “in the event that [the court]
elect[s] to depart from the guidelines,” which the court did not
do. Moreover, the court’s statement did not make clear that
Duque was entitled to appointed counsel should he be unable to
afford to pay his then-current attorney to pursue his appeal.
9
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.” Childs, 995 F.2d at 69
(emphasis added); see also Faubion, 19 F.3d at 231. Thus, Duque
is entitled to an evidentiary hearing on the issue of whether he
was informed of his right to appointed counsel on appeal.
The second issue we must address is whether Duque was fully
informed of his right to appeal his sentence. Duque claims that
Mendoza “advised the defendant he had no ground for an appeal,
whithout [sic] any explaination [sic].” Mendoza’s affidavit
states that, immediately following the district court’s
pronouncement of Duque’s sentence, he informed Duque that
under circumstances such as these, he could appeal his
sentence if the Court made an upward departure, without
a factual or legal basis, from the Guideline Range
reflected by the facts of his case as applied to the
Guideline Tables. In this case, the Court imposed the
minimum 292 months in a Level 40 matter, and it was
counsel’s opinion that no viable grounds for appeal
would lie.
The government contends that Mendoza’s advice was a reasonable
interpretation of 18 U.S.C. § 3742(a) which explains a criminal
defendant’s right to appeal his sentence. However, a defendant
may appeal the factual findings underlying the district court’s
enhancement of his sentence as well as the court’s application of
the Sentencing Guidelines to those facts. See, e.g., United
States v. Thomas, 120 F.3d 564, 574 (5th Cir. 1997) (appeal of a
sentence enhancement based on § 3B1.1(c) of the Sentencing
10
Guidelines); United States v. Paulk, 917 F.2d 879, 881 (5th Cir.
1990) (appeal of sentence enhancement based on § 2D1.1(b)(1) of
the Sentencing Guidelines).
In this case, the district court fully adopted the findings
in the PSR and enhanced Duque’s sentence four levels based on the
PSR’s finding that Duque was a leader or organizer and that a gun
was possessed in connection with the offense. Duque was entitled
to appeal the findings supporting the court’s enhancement of his
offense level and the application of the Sentencing Guidelines to
those findings if he so chose.5 See Faubion, 19 F.3d at 231
(“The attorney’s role . . . is to provide information on how to
appeal and the opportunity to do so; the client’s role is to make
the final decision as to take or not to take the appeal.”). As
it is unclear whether Mendoza fully explained Duque’s right to
appeal the enhancement of his sentence, we conclude that Duque is
also entitled to an evidentiary hearing on this issue.6
5
We express no opinion as to the merits of such an
appeal.
6
We emphasize that Duque is only entitled to an appeal
out-of-time if the district court finds that Mendoza advised him
that he was not entitled to appeal his sentence because the
district court did not depart upward. In contrast, should the
district court conclude that Mendoza was merely given arguably
bad legal advice regarding his chances of success on appeal of
the enhancements, then he is not entitled to an appeal out-of-
time. This is so because, where the alleged ineffective
assistance of counsel does not rise to the level of effectively
depriving a defendant his right to appeal, he must show that he
was prejudiced by the advice in order to receive an appeal out-
of-time. See Strickland, 466 U.S. at 690, 692; Gipson, 985 F.2d
at 215. Duque has made no showing that Mendoza’s advice
11
IV. CONCLUSION
For the foregoing reasons, we REVERSE the judgment of the
district court and REMAND the case for an evidentiary hearing on
the issues of (1) whether Duque was informed of his right to
appointed counsel on appeal and (2) whether Duque was correctly
informed of his right to appeal his sentence. If the district
court concludes that Duque was deprived of either of these pieces
of information, then he is entitled to an appeal out-of-time.
prejudiced him to the extent contemplated by Strickland.
12