IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30437
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR WILLARD JOHNSON, III,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CV-3772-S
99-CR-374-ALL-S
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June 21, 2002
Before SMITH, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Oscar Willard Johnson argues that the district court erred in dismissing his 28 U.S.C. § 2255
motion and in failing to grant him an out-of-time direct appeal. Johnson argues that his counsel failed
to file a direct appeal despite his request that counsel do so.
“[A] lawyer who disregards specific instructions from the defendant to file a notice of appeal
acts in a manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477
(2000). If co unsel fails to file a requested appeal, a defendant is entitled to a new appeal without
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
showing that his appeal would have merit because he reasonably relied on counsel to file the
necessary notice. Id.
The district court rejected Johnson’s allegation that he had instructed his counsel to file an
appeal. However, the record does not contain an affidavit from counsel or any other independent
evidence showing that Johnson did not make such a request or clarifying the nature of any discussions
Johnson had with his counsel. Thus, the record does not conclusively show that Johnson was not
entitled to an out-of-time appeal.
The district court abused its discretion in denying Johnson’s 28 U.S.C. § 2255 motion without
obtaining evidence on whether Johnson was deprived of his right to a direct appeal as a result of the
ineffective assistance of counsel. See United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).
The dismissal of the motion is VACATED and the case is REMANDED to the district court to obtain
the evidence necessary to resolve this issue.
VACATED AND REMANDED.
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