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.
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