IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30802
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ANTHONY THAMES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 97-CV-1131
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January 19, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Michael Anthony Thames requests a certificate of
appealability ("COA"), a prerequisite to appeal the district
court’s denial of his motion filed under 28 U.S.C. § 2255. See
Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir. 1997). He argues
that he was denied his right to an appeal because his trial
counsel ignored his request to file one and that he is entitled
*
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that this opinion should not be published and is not precedent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.
No. 98-30802
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to an evidentiary hearing to determine whether this allegation is
true.
A criminal defendant has a constitutional right to effective
assistance of counsel in his first appeal. 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). Strickland** v. Washington's
ineffective-assistance-of-counsel analysis is not performed when
there has been actual or constructive complete denial of any
assistance of appellate counsel. Sharp v. Puckett, 930 F.2d 450,
451-52 (5th Cir. 1991). “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.
A district court may dispose of a defendant’s § 2255 motion
without an evidentiary hearing if “the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief.” United States v. Drummond, 910 F.2d 284,
285 (5th Cir. 1990) (internal quotations omitted). Nonetheless,
**
Strickland v. Washington, 466 U.S. 668, 687 (1984).
No. 98-30802
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contested issues of fact may not be decided on the basis of
affidavits alone unless the affidavits are supported by other
evidence in the record. United States v. Hughes, 635 F.2d 449,
451 (5th Cir. 1981); Owens v. United States, 551 F.2d 1053, 1054
(5th Cir. 1977). No evidence other than the affidavit of
Thames’s counsel was offered to rebut Thames’s verified
allegation that he asked his counsel to file an appeal. Nothing
in the record corroborates counsel’s affidavit.
Thames has made a credible showing that the district court
erred in denying an evidentiary hearing. See Murphy v. Johnson,
110 F.3d 10, 11 (5th Cir. 1997). He has also shown that the
district court abused its discretion in deciding the case without
an evidentiary hearing. United States v. Bartholomew, 974 F.2d
39, 41 (5th Cir. 1992). Thus, a COA is GRANTED. No further
briefing is necessary; therefore, the district court's judgment
is VACATED, and the case is REMANDED for further proceedings.
See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).