United States v. Richard Higgins , 459 F. App'x 412 ( 2012 )


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  •      Case: 11-30411     Document: 00511739109         Page: 1     Date Filed: 01/27/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT   United States Court of Appeals
    Fifth Circuit
    FILED
    January 27, 2012
    No. 11-30411
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    RICHARD A. HIGGINS,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:10-CV-4268
    USDC No. 2:09-CR-402-1
    Before REAVLEY, SMITH, and PRADO, Circuit Judges.
    PER CURIAM:*
    Richard A. Higgins, federal prisoner # 31322-034, appeals from the denial
    of his 28 U.S.C. § 2255 motion, in which he argued that trial counsel was
    ineffective for failing to file a notice of appeal when instructed to do so. The
    district court assumed that counsel had failed to file a notice of appeal, but found
    that Higgins could not demonstrate prejudice arising from this presumed failure,
    as Higgins had waived his right to appeal.
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 11-30411    Document: 00511739109      Page: 2    Date Filed: 01/27/2012
    No. 11-30411
    To demonstrate ineffective assistance of counsel based on a claim that
    counsel failed to file a notice of appeal, a defendant must show that counsel
    performed deficiently and that a reasonable probability exists that, but for
    counsel’s deficient conduct, the defendant would have timely appealed. Roe v.
    Flores-Ortega, 
    528 U.S. 470
    , 476-77, 484, 486 (2000). Counsel’s performance is
    deficient if counsel disregards his client’s wishes concerning filing an appeal. 
    Id. at 477-78.
    The defendant need not demonstrate that he would have been able
    to raise a meritorious issue on appeal. 
    Id. at 483-86.
    Instead, if the petitioner
    demonstrates by a preponderance of the evidence that he ordered counsel to file
    an appeal, prejudice will be presumed, and the petitioner will be able to file an
    out-of-time appeal. United States v. Tapp, 
    491 F.3d 263
    , 266 (5th Cir. 2007).
    The defendant need only show “that there is a reasonable probability that, but
    for counsel’s failure, he would have timely appealed.” 
    Id. at 265.
    “[T]he rule of
    Flores-Ortega applies even in cases where a defendant has waived his right to
    direct appeal and collateral review.” 
    Id. at 266.
          The district court erred by basing the denial of § 2255 relief on Higgins’s
    appeal waiver provision. See 
    id. Additionally, Higgins
    alleged in his verified
    § 2255 motion that he directed counsel to file a notice of appeal and that counsel
    did not do so. The district court did not hold an evidentiary hearing, and the
    Government placed no evidence in the record indicating that Higgins did not
    direct counsel to file a notice of appeal. The record before this court is silent as
    to whether there was a reasonable probability that Higgins would have taken an
    appeal but for counsel’s alleged failure to file a notice of appeal. See 
    Tapp, 491 F.3d at 266
    .
    If the evidence does not “conclusively show” whether the petitioner
    requested that counsel file an appeal, then the district court should hold an
    evidentiary hearing on the issue. See 
    id. The evidence
    does not conclusively
    show whether Higgins directed counsel to file a notice of appeal. The district
    court thus should hold an evidentiary hearing on remand.
    VACATED AND REMANDED.
    2
    

Document Info

Docket Number: 11-30411

Citation Numbers: 459 F. App'x 412

Judges: Per Curiam, Prado, Reavley, Smith

Filed Date: 1/27/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023