United States v. Edgar Hernandez , 603 F. App'x 206 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7846
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDGAR BENITEZ HERNANDEZ, a/k/a Clavo, a/k/a Shadow,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:10-cr-00223-CMH-1; 1:14-cv-01042-CMH)
Submitted: April 17, 2015 Decided: May 19, 2015
Before MOTZ, DUNCAN, and HARRIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Edgar Benitez Hernandez, Appellant Pro Se. Patricia Marie
Haynes, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edgar Benitez Hernandez seeks to appeal the district
court’s order dismissing his 28 U.S.C. § 2255 (2012) motion. We
grant a certificate of appealability, vacate the district
court’s order, and remand for further proceedings.
Hernandez pled guilty to two counts of use and discharge of
a firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A) (2012). Hernandez did not appeal his conviction
or sentence; instead, he filed a § 2255 motion alleging that he
directed his counsel to note an appeal but counsel failed to do
so. Without conducting an evidentiary hearing or determining
whether Hernandez unequivocally asked counsel to file a notice
of appeal, the district court denied relief on Hernandez’s
§ 2255 motion. In so doing, the district court held that
because Hernandez’s plea agreement contained an appellate
waiver, counsel acted reasonably by not filing a notice of
appeal and counsel’s failure did not prejudice Hernandez.
“When the district court denies § 2255 relief without an
evidentiary hearing, the nature of the court’s ruling is akin to
a ruling on a motion for summary judgment [and] we review the
facts in the light most favorable to the § 2255 movant.” United
States v. Poindexter, 492 F.3d 263, 267 (4th Cir. 2007).
Accordingly, for the purposes of this appeal, we must assume, as
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Hernandez contends, that he unequivocally asked counsel to file
a notice of appeal. Id. at 267, 269.
The Sixth Amendment obligates counsel to file a notice of
appeal when a defendant requests him to do so; a waiver of
appellate rights in a defendant’s plea agreement does not
absolve counsel of this duty. Id. at 268-69. Counsel’s failure
to file a requested notice of appeal prejudices the defendant
because it deprives him of his appellate proceeding. Id. at
269.
Accordingly, we grant a certificate of appealability, grant
Hernandez leave to proceed in forma pauperis, and vacate the
district court’s order denying relief on Hernandez’s § 2255
motion. Because it is not apparent from the record whether
counsel fulfilled his obligations in regard to Hernandez’s
appellate rights, see Roe v. Flores-Ortega, 528 U.S. 470, 480
(2000), Poindexter, 492 F.3d at 271, we remand so that the
district court can make this determination. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
VACATED AND REMANDED
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