IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-60207
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT GARY JONES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:94-CV-661
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July 24, 1995
Before JOLLY, DAVIS and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
This case is here on a motion to proceed in forma pauperis
(IFP) on appeal. This court may authorize Jones to proceed IFP
on appeal if he is unable to pay the costs of the appeal and the
appeal is taken in good faith, i.e., the appeal presents
nonfrivolous issues. 28 U.S.C. § 1915(a); Holmes v. Hardy, 852
F.2d 151, 153 (5th Cir.), cert. denied, 488 U.S. 931 (1988).
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-60207
-2-
Jones filed this motion under 28 U.S.C. § 2255, alleging
that 1) resentencing was required because the district court
relied on his prior uncounseled convictions;** 2) that his
counsel was ineffective for failing to object to the erroneous
application of the sentencing guidelines; and 3) that his counsel
was ineffective for failing to file a notice of appeal. The
district court denied Jones' § 2255 motion without a hearing and
denied Jones' motion to proceed IFP on appeal.
Jones argues that his counsel was ineffective for failing to
file a notice of appeal. He contends that the district court
abused its discretion in taking counsel's affidavit at face value
over his affidavit without a hearing to determine credibility.
Jones contends that he called counsel's office and was assured
that his appeal would be perfected.
The failure of counsel to perfect an appeal upon request of
his client, or failure to advise the client of his right to
appeal and the time limits involved may constitute ineffective
assistance, entitling the defendant to an out-of-time appeal.
See United States v. Gipson, 985 F.2d 212, 215 (5th Cir. 1993).
"If a petitioner [movant] can prove that the ineffective
assistance of counsel denied him the right to appeal, then he
need not further establish--as a prerequisite to habeas relief--
that he had some chance of success on appeal." Gipson, 985 F.2d
at 215.
**
Jones does not raise this issue in his appellate brief,
and so it is considered abandoned. See Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993).
No. 95-60207
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"A motion brought under 28 U.S.C. § 2255 can be denied
without a 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). The affidavits of Jones and Davis raise a factual
dispute regarding whether Davis, through his secretary, promised
to file a notice of appeal on behalf of Jones. If Jones'
allegations are believed, he is entitled to relief on this issue.
See Perez v. Wainwright, 640 F.2d 596, 597-99 (5th Cir. 1981),
cert. denied, 456 U.S. 910 (1982) (failure to file an appeal as
promised constitutes a Sixth Amendment violation). The district
court is required under § 2255 to conduct an evidentiary hearing
when affidavits raise fact disputes. May v. Collins, 955 F.2d
299, 311 (5th Cir.), cert. denied, 504 U.S. 901 (1992) (citing
Machibroda v. United States, 368 U.S. 487, 494-96 (1962)). The
district court erred in failing to conduct an evidentiary hearing
on this claim in light of the conflicting affidavits.
This issue is not frivolous. Therefore, IFP is hereby
GRANTED, and this case is VACATED AND REMANDED for an evidentiary
hearing on this claim. See Clark v. Williams, 693 F.2d 381, 382
(5th Cir. 1982) (the court may dispose of the appeal on the
merits on a motion for IFP).
Jones argues that he should not have received the upward
adjustment for managerial role in the offense because he and his
wife bore equal responsibility in the crime. He further argues
that his counsel was ineffective for failing to challenge the
adjustment. Upon original sentencing, Jones objected to the
No. 95-60207
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adjustment for role in the offense. At resentencing, Jones'
attorney adopted the original objection, which the district court
denied. Therefore, Jones' claim that his attorney failed to
challenge the adjustment is not supported by the record.
Regarding Jones' substantive argument that the adjustment
should not have been applied, Jones could have raised, but did
not raise this issue in his first direct appeal. "Relief under
28 U.S.C.A. § 2255 is reserved for transgressions of
constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice." United
States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Technical
misapplication of the Sentencing Guidelines does not give rise to
a constitutional issue. Id. "[A] challenge to a sentencing
judge's technical application of the sentencing guidelines may
not be raised in a § 2255 proceeding." United States v. Faubion,
19 F.3d 226, 233 (5th Cir. 1994) (citing inter alia Vaughn, 955
F.2d at 368). This claim is not cognizable in this § 2255
proceeding. The denial of § 2255 relief on this ground is
AFFIRMED.
Jones argues that his counsel was ineffective for failing to
advise him to plead guilty. Jones did not raise this issue in
his § 2255 motion in the district court, and so we will not
consider it. United States v. Madkins, 14 F.3d 277, 279 (5th
Cir. 1994).
IFP GRANTED, AFFIRMED IN PART, VACATED AND REMANDED IN PART
FOR EVIDENTIARY HEARING.