United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2007
Charles R. Fulbruge III
Clerk
No. 06-40134
USDC No. 4:05-CV-242
USDC No. 4:04-CR-4-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES B. WAINWRIGHT,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Charles B. Wainwright, formerly federal prisoner # 12508-
078, pleaded guilty to knowingly possessing one or more visual
depictions of minors engaging in sexually explicit conduct and
was sentenced to 33 months of imprisonment and three years of
supervised release. Wainwright filed a 28 U.S.C. § 2255 motion,
asserting that he received ineffective assistance of counsel
because his attorney failed to file a notice of appeal following
his conviction. The district court denied the motion and a
certificate of appealability (COA).
*
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this opinion should not be published and is not precedent except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. 06-40134
-2-
Wainwright moves for a COA to appeal the district court’s
denial of his § 2255 motion. Wainwright argues that he was
denied effective assistance of counsel when his attorney failed
to consult with him regarding an appeal and whether to file an
appeal.
To obtain a COA, Wainwright must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Wainwright must show that jurists of reason could
debate the propriety of the district court’s assessment of his
constitutional claims or conclude that his claims “are adequate
to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
To prevail on a claim of ineffective assistance for failure
to file notice of appeal, Wainwright must show that the failure
to file fell below an objective standard of reasonableness and
that it prejudiced him. See Roe v. Flores-Ortega, 528 U.S. 470,
484 (2000). An attorney’s failure to file a notice of appeal
when requested is “professionally unreasonable.” See id. at 477.
When a defendant has not specifically expressed his wishes
regarding an appeal, the preliminary inquiry is “whether counsel
in fact consulted with the defendant about an appeal.” Id. at
478. Under Roe, “consult” means “advising the defendant about
the advantages and disadvantages of taking an appeal, and making
a reasonable effort to discover the defendant’s wishes.” Id. If
counsel consults with the defendant, then counsel acts in a
No. 06-40134
-3-
“professionally unreasonable manner only by failing to follow the
defendant’s express instructions with respect to an appeal.” Id.
The parties disagree regarding whether Wainwright instructed
counsel to file an appeal. However, counsel concedes that he did
not speak directly with Wainwright regarding an appeal following
his conviction.
To show prejudice, Wainwright must demonstrate that there is
a reasonable probability that, but for counsel’s error, he would
have appealed. Roe, 528 U.S. at 486. The district court made no
findings on this issue, and the record does not demonstrate
whether Wainwright would have filed an appeal. Thus, reasonable
jurists could debate the correctness of the district court’s
resolution of this issue. Miller-El, 537 U.S. at 327.
“Unless the motion and the files and records of the case
conclusively show that the petitioner is entitled to no relief”
under § 2255, a district court must hold a hearing to resolve
factual and legal issues. See § 2255; see also United States v.
Briggs, 939 F.2d 222, 228-29 & n.19 (5th Cir. 1991). We offer no
opinion regarding the merits of Wainwright’s ineffective
assistance claim. We do not reach Wainwright’s Blakely v.
Washington, 542 U.S. 296 (2004) and actual innocence claims at
this time.
Accordingly, Wainright’s motion for a COA is GRANTED on the
narrow issue of whether Wainwright was prejudiced by counsel’s
failure to consult Wainwright regarding an appeal, the judgment
No. 06-40134
-4-
of the district court is VACATED, and the case is REMANDED for an
evidentiary hearing.
Wainwright has requested leave to proceed in forma pauperis
(IFP) on appeal. Wainwright may proceed IFP on appeal only if he
is economically eligible and presents a nonfrivolous issue. See
Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982) (relying on
the language of the former 28 U.S.C. § 1915. As set forth above,
Wainwright has presented a nonfrivolous issue. Wainwright has
not shown, however, that he is financially eligible for IFP
status. See Adkins v. E.I. DuPont de Nemours & Co., Inc., 335
U.S. 331, 339 (1948). Accordingly, Wainwright’s motion to
proceed IFP is DENIED.