IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60370
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES W. GAVIN, also known as Charlie,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
(3:00-CV-3-B)
(3:98-CR-58-1-B)
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June 1, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Pursuant to our grant of a certificate of appealability,
Defendant-Appellant Charles W. Gavin, federal prisoner #10867-042,
appeals the district court’s denial of his 28 U.S.C. § 2255 motion
to vacate, set aside, or correct sentence on his claim of
ineffective assistance of counsel. This claim is based on the
refusal or failure of retained criminal defense counsel to file a
notice of appeal on Gavin’s behalf.
*
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that this opinion should not be published and is not precedent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.
The district court record establishes that Gavin was (1)
informed by his lawyer that he refused to file an appeal and (2)
advised of his right to appeal and to have an attorney appointed on
appeal if he could not afford to retain one. There is no evidence
in the record, however, showing that Gavin was advised that his
notice of appeal had to be filed within 10 days following the entry
of his judgment of conviction. If in fact Gavin was not informed
of the time within which his notice of appeal had to be filed, his
counsel’s performance would be considered deficient. That in turn
would raise the question whether Gavin’s lack of information
regarding the time within which to file a notice of appeal caused
him to lose his right to appeal, thereby constituting prejudice.
See Roe v. Flores-Ortega, 528 U.S. 470, 477, 484 (2000); White v.
Johnson, 180 F.3d 648, 651-52 (5th Cir. 1999); Norris v.
Wainwright, 588 F.2d 130, 135 (5th Cir. 1979).
Because Gavin’s 28 U.S.C. § 2255 motion and the remainder of
the record do not demonstrate conclusively that Gavin is not
entitled to relief, the district court’s failure to conduct an
evidentiary hearing before denying the motion constitutes abuse of
discretion. See 28 U.S.C. § 2255; United States v. Bartholomew,
974 F.2d 39, 41 (5th Cir. 1992). As such, we must vacate the
district court’s denial of Gavin’s 28 U.S.C. § 2255 motion with
respect to his ineffective assistance claim based on his counsel’s
failure to file a notice of appeal, and remand this case for an
evidentiary hearing on that claim.
VACATED IN PART AND REMANDED FOR EVIDENTIARY HEARING.
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