IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-30744
USDC No. CA-94-665
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RALPH BERGERON,
Defendant-Appellant.
---------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
---------------------
December 7, 1995
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Ralph Bergeron argues on appeal that he was denied his right
to a direct appeal from his conviction and sentence. He contends
that, although he informed his counsel that he wished to appeal,
his counsel refused to file a notice of appeal.
A criminal defendant has a constitutional right to effective
assistance of counsel in his first appeal as of right. See
Evitts v. Lucey, 469 U.S. 387, 393-95 (1985). The failure of
*
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that this opinion should not be published.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. 95-30744
-2-
counsel to perfect an appeal upon request of his client may
constitute ineffective assistance of counsel. See United States
v. Gipson, 985 F.2d 212, 215 (5th Cir. 1993). The standard
Strickland v. Washington ineffective-assistance-of-counsel
analysis is not performed when there has been actual or
constructive complete denial of any assistance of appellate
counsel. Sharp v. Puckett, 930 F.2d 450, 451-52 (5th Cir. 1991)
(citing Penson v. Ohio, 488 U.S. 75 (1988)).
"In the context of the loss of appellate rights, prejudice
occurs where a defendant relies upon his attorney's
unprofessional errors, resulting in the denial of his right to
appeal." Gipson, 985 F.2d at 215. "If a petitioner 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."
Id. In such cases, prejudice is presumed and neither the
Strickland prejudice test nor the harmless-error test is
appropriate. Sharp, 930 F.2d at 452; but cf. Gipson, 985 F.2d at
215-17 (applying a Strickland prejudice analysis to the review of
a case in which it was established that the convicted defendant
informed his retained counsel of his desire to appeal and the
attorney failed to perfect an appeal).
A defendant is entitled to relief if he directed his
attorney to take an appeal and counsel disregarded those
instructions. Gipson, 985 F.2d at 216-17; Norris v. Wainwright,
588 F.2d 130, 134-35 (5th Cir.), cert. denied, 444 U.S. 846
(1979). A defendant is also entitled to relief if his court-
No. 95-30744
-3-
appointed counsel failed to inform him properly of his appellate
rights, including his right to appeal, the procedure and time
limits involved, and the right to appointed counsel on appeal.
Norris, 588 F.2d at 134-35. If the defendant has been informed
of his right to appeal and does not make known to his attorney
his desire to pursue an appeal, he has waived his right to
appeal, and a claim of ineffective assistance of counsel will not
lie. Gipson, 985 F.2d at 216.
Failure by the attorney to file a notice of appeal does not
automatically evidence a denial of a defendant's rights, however.
Id. at 217 n.7. In United States v. Green, 882 F.2d 999 (5th
Cir. 1989), the defendant requested that his attorney file a
notice of appeal, and his attorney informed him that he "would
have to be paid more money" before filing the appeal. Id. at
1003. This court held that the defendant was not entitled to
relief in the form of an out-of-time appeal because the defendant
did not rely upon his attorney filing the notice of appeal; the
defendant knew that his attorney would not pursue an appeal
without being paid. Id. The defendant was thus not entitled to
the presumption of prejudice that attaches when the defendant has
reasonably relied upon the attorney's representations. In Green,
however, the court also relied upon the fact that the defendant
was a lawyer, that the defendant was aware of his right to
appeal, and that the defendant was aware of the need for a notice
of appeal in the court's determination that the defendant was not
prejudiced, even assuming that his attorney erred. Id.
No. 95-30744
-4-
Bergeron alleged in his § 2255 motion that he had been
denied the right to appeal because his attorney told him that he
"would not appeal. He said that there was nothing to appeal."
In Bergeron's objections to the magistrate judge's report and
recommendation, he alleged that his counsel never informed him of
his appellate rights. He stated that "only the Court" informed
him of his right to appeal. Bergeron further alleged that he
specifically told his attorney to appeal, and his attorney
refused, stating that he would not appeal because there was
nothing to appeal. Bergeron was informed of his right to appeal
by the district court at sentencing. The district court did not
advise Bergeron of the time limit for filing a notice of appeal.
It cannot be determined from the record whether Bergeron
instructed his counsel to file an appeal. Aside from Bergeron's
allegations, there is no other evidence in the record regarding
the circumstances surrounding the failure to file a notice of
appeal. Neither can it be determined from the record whether
Bergeron was informed by his counsel that he could file a pro se
notice of appeal within ten days of the court's judgment or that
he had a right to counsel on appeal.
Counsel is obliged to protect his client's right to appeal.
See Chapman v. United States, 469 F.2d 634, 636 (5th Cir. 1972).
If Bergeron did request an appeal, counsel was thus obliged to
preserve his right to appeal. See id. The record indicates that
counsel did not file a notice of appeal. Neither did counsel
seek to withdraw from representation of Bergeron. The record
No. 95-30744
-5-
nevertheless indicates that counsel was paid $2,159.50 for
representation of Bergeron in "all proceedings."
Bergeron alleges that he told his attorney to file a notice
of appeal, but that his attorney refused. He further alleges
that his attorney never informed him of his appellate rights and
that the only information he received regarding these rights was
from the district court, informing him merely that he had a
"right to appeal." Further, unlike the defendant in Green,
Bergeron was an indigent criminal defendant with no special
knowledge of the law. See 882 F.2d at 1003. If the facts
alleged by Bergeron are true, then Bergeron received ineffective
assistance of counsel for counsel's failure to file a notice of
appeal. Bergeron has thus demonstrated that he will present a
nonfrivolous issue on appeal.
A district court may deny a § 2255 motion without a hearing
or further proceedings "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 record in this case does not demonstrate conclusively
that Bergeron is not entitled to relief. Although Bergeron
waited more than four years after the judgment of conviction
before he advised the courts of his allegation that he was denied
the right to appeal, "this Court's policy has been strongly in
favor of the position that a waiver will not be assumed unless
the facts clearly support such an assumption." See Chapman, 469
F.2d at 637 (defendant who waited four years after the judgment
No. 95-30744
-6-
of conviction to allege that he had been denied his right to
appeal entitled to an evidentiary hearing).
Although Bergeron does not argue on appeal that the district
court erred by failing to conduct an evidentiary hearing on his
ineffective-assistance claim, he requested such a hearing before
the district court. Bergeron's allegation that counsel failed
either to inform him of his appellate rights or to file a notice
of appeal was sufficient to trigger the district court's
obligation to hold an evidentiary hearing. See Chapman, 469 F.2d
at 636-37.
Bergeron's motion to proceed in forma pauperis on appeal is
GRANTED, the judgment of the district court is VACATED, and the
case is remanded for an evidentiary hearing to determine whether
"there has been an actual or constructive complete denial of any
assistance of appellate counsel." See Lombard v. Lynaugh, 868
F.2d 1475, 1480 (5th Cir. 1989); see Bartholomew, 974 F.2d at 41.
If Bergeron successfully proves his claim on remand, the judgment
of conviction should be reinstated on the district court's docket
on the date from which the time for Bergeron to file a notice of
appeal shall run. If the district court determines that Bergeron
is not entitled to an out-of-time appeal, the court should
reinstate its judgment denying Bergeron's § 2255 motion. Then,
if Bergeron chooses to appeal, this court will review his
remaining claims.
VACATED AND REMANDED.