IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50568
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN DELGADO NAVEJAR, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. SA-97-CA-532 and SA-90-CR-170-1
July 26, 1999
Before GARWOOD, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Benjamin Delgado Navejar, Jr., federal prisoner # 43691-080,
appeals the district court’s denial of his motion to vacate his
sentence pursuant to 28 U.S.C. § 2255. Navejar asserts that he was
not informed of his right to have counsel appointed on direct
appeal and that he was denied his right to counsel. Navejar filed
his appeal pro se.
The district court misconstrued Navejar’s argument as an
argument that he was denied the right to appeal, rather than that
*
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opinion should not be published and is not precedent except under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.
he was denied the right to counsel on appeal. Although Navejar was
informed at sentencing of his right to proceed in forma pauperis on
appeal, the sentencing transcript does not show that he was
informed of his right to court-appointed counsel on appeal.
The district court erred in holding that Navejar could not
establish prejudice from his attorney’s alleged ineffective
assistance, because he did not request his attorney to file an
appeal, and because the issues he raised on direct appeal were
frivolous. However, Navejar averred that he requested his counsel
to appeal but counsel refused to do so because Navejar could not
pay his fee, and that counsel did not advise Navejar of his right
to court-appointed counsel, and that Navejar was not aware of that
right and for that reason and because he was indigent he appealed
pro se, but would have requested appointment of counsel for appeal
had he known he was entitled to same. The record as it stands now
does not expressly refute these averments. It is not necessary to
show prejudice when there is an actual or constructive denial of
counsel on direct appeal of a criminal conviction. Penson v. Ohio,
488 U.S. 75, 88-89 (1988).
Because factual issues remain regarding whether Navejar was
informed or otherwise aware of his right to court-appointed counsel
on appeal and whether he was then indigent, the judgment of the
district court is VACATED and the case is REMANDED for proceedings
consistent with this opinion, including an evidentiary hearing to
determine whether Navejar was informed (or otherwise aware) of his
right to appointed counsel on appeal (and, if not, whether had he
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been so informed or aware he would have procured appointed counsel
on appeal).
VACATED and REMANDED
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