IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20877
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADIELE CHUKWU ONWUASOANYA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. CV-H-96-1092
April 16, 1999
Before HIGGINBOTHAM, JONES, AND DENNIS, Circuit Judges.
PER CURIAM:*
Pressing that he was denied effective assistance of counsel,
Adiele Chukwu Onwuasoanya appeals the district court’s denial of
his 28 U.S.C. § 2255 motion. Onwuasoanya asserts that his plea, to
a charge of conspiracy to import heroin, was not knowing and
voluntary because of the ineffective assistance, and that his
counsel failed to appeal despite Onwuasoanya’s request. He also
maintains that the government broke its promise not to use
information he supplied against him at sentencing and that there
was no factual basis to support the plea.
*
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this opinion should not be published and is not precedent except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.
It is on Onwuasoanya’s allegation that his counsel did not
appeal that we focus. Onwuasoanya was sentenced on July 13, 1992,
but did not file a timely notice of appeal. More than a year
later, on December 6, 1993, Onwuasoanya filed in the district court
a notice of his intent to appeal to vacate, correct, and modify the
final judgment. The district court denied this motion without
explanation. On April 8, 1996, Onwuasoanya filed pro se the § 2255
motion at issue here.
Initially, the government did not respond to the § 2255
motion, and the district court summarily denied it. Onwuasoanya
timely noticed his appeal, and we granted him COA for the sole
purpose of a limited remand to the district court for entry of
reasons for its dismissal. After ordering the government to
respond to the § 2255 motion, the district court denied the motion
once again. On the relevant issue, the court found that
Onwuasoanya was not entitled to an evidentiary hearing, because his
assertions that he told his attorney to file an appeal were
conclusional and unsupported by the record or any other evidence.
We subsequently held that Onwuasoanya need not obtain a COA to
appeal, because he filed his § 2255 motion in the district court
before the effective date of the AEDPA.
Ordinarily, a § 2255 movant alleging ineffective assistance of
counsel must show both deficient performance and prejudice. See
Strickland v. Washington, 466 U.S. 668, 690, 692 (1984). When the
attorney’s performance allegedly resulted in the actual or
constructive denial of any assistance of appellate counsel,
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prejudice is presumed, and the movant need not demonstrate that he
would have succeeded on appeal. See Penson v. Ohio, 488 U.S. 75,
88 (1988); United States v. Gipson, 985 F.2d 212, 215 (5th Cir.
1993) (“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.”).
“The duty to perfect an appeal on behalf of a convicted client
[arises] when the client makes known to counsel his desire to
appeal the conviction.” Childs v. Collins, 995 F.2d 67, 69 (5th
Cir. 1993). The Constitution requires that a defendant be advised
“of the procedure and time limits involved and of his right to
appointed counsel on appeal.” Id. In certain circumstances, an
attorney’s failure to inform a defendant of applicable time
limitations violates professional standards and constitutes
ineffective assistance. See Gipson, 985 F.2d at 216. In this
case, Onwuasoanya alleges that he told his attorney to file a
notice of appeal, but his attorney refused. Though it advised him
of his right to appeal, the trial court did not inform him of the
relevant procedures and time limits.
The district court abused its discretion by not holding an
evidentiary hearing on Onwuasoanya’s claim that he informed his
attorney he wanted to appeal and was not told of the applicable
time limitations. This is so despite the great length of time
between sentencing and the filing of the § 2255 motion. We
confronted an almost identical situation in Chapman v. United
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States, 469 F.2d 634 (5th Cir. 1972). The appellant in that case
similarly “allege[d] that his lawyer abandoned the appeal without
notice to either the appellant or the court.” Id. at 636. Even
though the prisoner had waited four years before filing the claim,
we held that “it was error for the district court to deny the
appellant’s motion without an evidentiary hearing.” Id. at 637.
The government’s counterarguments are unavailing. First, the
government argues that Onwuasoanya is procedurally barred. By
choosing not to respond to the § 2255 motion, however, the
government waived this procedural bar. See United States v.
Drobny, 955 F.2d 990, 994-95 (5th Cir. 1992). It does not appear
that the government sought to invoke the procedural bar after we
granted COA for the limited purpose of allowing the district court
to indicate the reasons behind its decision. We need not decide
here whether the government could raise the procedural bar on
remand. See generally United States v. Guerra, 94 F.3d 989, 992-93
(5th Cir. 1996).
Second, the government emphasizes that “mere conclusory
allegations do not raise a constitutional issue in a habeas
proceeding.” Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983).
“[A] district court does not commit error when it disposes of a
habeas petitioner’s claims without holding a full-fledged
evidentiary hearing when those claims are unmeritorious,
conclusory, and wholly unsupported by the record.” Id. at 1011 n.2.
In Ross, however, the appellant claimed that a witness would have
supported his alibi, yet did not include an affidavit. Here, as in
4
Chapman, the petitioner promises to testify himself about the
relevant events, and there is nothing in the record inconsistent
with his allegation.
We VACATE and REMAND so that the district court can hold an
evidentiary hearing on Onwuasoanya’s claim that his attorney
ignored his request to file an appeal. Because a decision in
Onwuasoanya’s favor would allow him to file an out-of-time appeal,
arguably mooting his remaining issues, we do not decide these here.
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