United States v. Riascos

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-30830
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

HECTOR CUERO RIASCOS,
also known as Hector Riascos Cuero,

Defendant-Appellant.

Appeal from the United States District Court
For the Eastern District of Louisiana
February 28, 1996
Before WIENER, PARKER and DENNIS, Circuit Judges.
PER CURIAM:

Hector Cuero Riascos ("Riascos") appeals the denial of his 28

U.S.C. § 2255 motion to vacate, set aside, or correct sentence.

FACTS AND PROCEEDINGS IN DISTRICT COURT

Pursuant to a plea agreement, Riascos pleaded guilty to being

in the United States after having been previously deported in

violation of 8 U.S.C. § 1326(b)(2). At sentencing, the district

court concluded that Riascos's prior conviction was an "aggravated

felony" under the guidelines and sentenced Riascos to 78 months'

imprisonment. Counsel filed a notice of appeal, but the appeal was

dismissed for want of prosecution.
Eight months later, Riascos filed a motion for relief under 28

U.S.C. § 2255, alleging that he had been improperly sentenced under

the Sentencing Guidelines and that he had been denied effective

assistance of counsel during plea negotiations and sentencing. The

magistrate judge issued a report and recommendation, recommending

that the court deny Riascos' application. The magistrate judge

concluded that Riascos' sentencing error claim was procedurally

barred as he could have raised this issue on appeal but failed to

do so and had not shown cause for this failure and actual

prejudice. The magistrate judge also reviewed the record and

rejected Riascos' allegations as unfounded.

Riascos filed a "Petitioner's Traverse to the Magistrate's

Recomendation" [sic], in which he, inter alia, alleged that his

counsel had been ineffective for failing to argue this sentencing

issue on appeal. After considering Riascos' "traverse," the

district court adopted the magistrate judge's report, with minor

modifications, and denied the application. The district court made

no specific reference to Riascos' claim of ineffective assistance

of counsel on appeal, but found Riascos' sentencing issue without

merit.

INEFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL

On appeal, Riascos reiterates the claim, first made in his

objections to the magistrate judge's report and recommendation,

that he asked counsel to appeal but counsel failed to file a brief.

The record supports Riascos' allegation that he was denied counsel

on appeal. Prejudice is presumed when movant experiences complete

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denial of counsel, whether actual or constructive. Sharp v.

Puckett, 930 F.2d 450, 451-52 (5th Cir. 1991).

The district court may construe an issue raised for the first

time in an objection to a magistrate judge's report and

recommendation as a motion to amend complaint. Johnson v.

Bartlett, No. 94-50238, slip op. at 8-9 (5th Cir. Sept. 30, 1994),

citing Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir. 1972)

(leave to amend pleading out-of-time should be given freely when

justice so requires). We review the district court's failure to

allow such an amendment for abuse of discretion. Id.

Riascos' pleadings, taken together, clearly advised the

district court that he had been denied effective assistance of

counsel on appeal. To penalize Riascos for less-than-perfect

pleading is a clear violation of the rule that courts must

liberally construe pro se pleadings. See Macias v. Raul A.

(Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). Further,

the district court's disposition was based, in part, on the fact

that the one appeal issue that Riascos has identified with no

assistance from counsel was, in the district court's opinion,

without merit. The right to counsel on direct appeal is not

limited to those individuals who can articulate a meritorious

appeal issue without the assistance of counsel. For these reasons,

we conclude that the district court's failure to construe Riascos'

"traverse" as a motion to amend was an abuse of discretion.

CONCLUSION

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Based on the foregoing, we reverse and remand for further

proceedings consistent with this opinion.

REVERSED and REMANDED.