United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 28, 2004
Charles R. Fulbruge III
Clerk
No. 03-11051
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER WAYNE MCMILLEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC Nos. 3:02-CV-2078-G
3:01-CR-139-ALL-G
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Walter Wayne McMillen (“McMillen”), federal prisoner #26819-
177, moves this court for a certificate of appealability (“COA”)
to appeal the district court’s denial of his 28 U.S.C. § 2255
motion to vacate, set aside, or correct his sentence. Construing
his motion liberally, McMillen argues that the waiver in his plea
agreement did not bar his 28 U.S.C. § 2255 motion and that the
district court should have held an evidentiary hearing on his
*
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that this opinion should not be published and is not precedent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. 03-11051
-2-
claims that he would not have pleaded guilty but for his
counsel’s ineffectiveness and that his counsel was ineffective
for failing to file a notice of appeal. McMillen’s further
argument that the district court erred by failing to consider the
combined affect of his ineffective assistance of counsel claims
is refuted by the record. McMillen additionally states that all
of the claims he raised in the district court were meritorious,
but because he does not explain why his remaining claims were
meritorious, he has failed to adequately brief these claims and
they are deemed waived. See Yohey v. Collins, 985 F.2d 222, 224-
25 (5th Cir. 1993).
To obtain a COA, McMillen must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). As McMillen’s 28 U.S.C. § 2255 motion was denied
both on procedural grounds and on its merits, he “must
demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or
wrong” and “that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The claims that McMillen raises in this court are
ineffective assistance of counsel claims. Although some
ineffective assistance of counsel claims may be waived, see
United States v. White, 307 F.3d 336, 343-44 (5th Cir. 2002), in
this case the waiver specifically excepted ineffective assistance
No. 03-11051
-3-
of counsel claims. Accordingly, McMillen’s waiver did not bar
these claims and McMillen has shown that the district court’s
procedural ruling was debatable or wrong. See Slack, 529 U.S. at
484.
The district court denied McMillen’s relevant ineffective
assistance of counsel claims without conducting an evidentiary
hearing because the affidavit of McMillen’s counsel contradicted
McMillen’s allegations, because it found that no evidence
supported McMillen’s claim that he had a viable public authority
defense, and because it found that any appeal McMillen could have
filed would have been meritless. McMillen’s affidavit, however,
set forth facts that, if true, showed that his counsel failed to
file a notice of appeal after McMillen requested that he do so,
that his counsel lied to him during plea negotiations, that he
was working as a confidential informant at the time of his
arrest, and that he asked his counsel to investigate and present
a public authority defense but that his counsel refused to do so.
A district court may deny a 28 U.S.C. § 2255 motion without
holding an evidentiary hearing “only if the motion, files, and
records of the case conclusively show that the prisoner is
entitled to no relief.” United States v. Bartholomew, 974 F.2d
39, 41 (5th Cir. 1992). We review a district court’s denial of a
28 U.S.C. § 2255 motion without holding an evidentiary hearing
for an abuse of discretion. United States v. Cervantes, 132 F.3d
1106, 1110 (5th Cir. 1998). “[C]ontested fact issues [in a 28
No. 03-11051
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U.S.C. § 2255 case] ordinarily may not be decided on affidavits
alone, unless the affidavits are supported by other evidence in
the record.” United States v. Hughes, 635 F.2d 449, 451 (5th
Cir. Unit B 1981).
The record does not conclusively show that McMillen is not
entitled to relief on his ineffective assistance of counsel
claims. See Hughes, 635 F.2d at 451. McMillen presented
facially valid claims that he would not have pleaded guilty but
for his counsel’s ineffectiveness and that his counsel was
ineffective for failing to file a notice of appeal. See Hill v.
Lockhart, 474 U.S. 52, 59 (1985); Strickland v. Washington, 466
U.S. 668, 688-92 (1984); Roe v. Flores-Ortega, 528 U.S. 470, 477
(2000). The district court’s finding that any direct appeal
filed by McMillen would have been without merit does not change
this analysis because the failure to file a notice of appeal upon
request is ineffective assistance of counsel without a showing
that the appeal would have merit. See Flores-Ortega, 528 U.S. at
477. Accordingly, we GRANT McMillen a COA on his claims that he
would not have pleaded guilty but for his counsel’s
ineffectiveness and that his counsel was ineffective for failing
to file a notice of appeal, VACATE the district court’s denial of
28 U.S.C. § 2255 relief, and REMAND to the district court for an
evidentiary hearing regarding these issues. See Dickinson v.
Wainwright, 626 F.2d 1184, 1186 (5th Cir. 1980). COA is DENIED
on any remaining issues.
COA GRANTED IN PART, DENIED IN PART; VACATED AND REMANDED.