United States v. Ryan , 215 F. App'x 331 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 29, 2007
Charles R. Fulbruge III
Clerk
No. 06-10224
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES RAY RYAN, JR.,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
(1:05-CV-15)
(1:04-CR-22)
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant James Ray Ryan, federal prisoner #
32861-177, moves this court for a certificate of appealability
(COA) following the district court’s denial of his 28 U.S.C. § 2255motion. In his motion, Ryan challenged the validity of his guilty
plea to being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g). Ryan also asserted that his counsel was
ineffective for failing to file a notice of appeal, although he
specifically requested that counsel do so.
*
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this opinion should not be published and is not precedent except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.
A COA may issue only if Ryan makes “a substantial showing of
the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 484 (2000). “The COA
determination under § 2253(c) requires an overview of the claims in
the habeas petition and a general assessment of their merits.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). “A petitioner
satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Id. at 327.
With respect to his challenge to the validity of his guilty
plea, Ryan has failed to meet the standard required for the
issuance of a COA. Accordingly, Ryan’s motion for a COA is DENIED
as to this issue. Ryan has, however, made a substantial showing of
the denial of a constitutional right with respect to his claim that
counsel was ineffective in failing to file a notice of appeal on
his behalf. See Roe v. Flores-Ortega, 528 U.S. 470, 477, 483
(2000). Because he alleges that he specifically requested that
counsel file a notice of appeal, Ryan was not required to
demonstrate that he would have presented merit worthy issues on
appeal. See id. at 485. Further, Ryan’s § 2255 motion was made
under penalty of perjury and was competent evidence supporting his
claim. 28 U.S.C. § 1746; see Hart v. Hairston, 343 F.3d 762, 764
n.1 (5th Cir. 2003). Because Ryan’s § 2255 motion and the files
2
and records of this case do not conclusively show that he is
entitled to no relief, an evidentiary hearing was required. See
United States v. Hughes, 635 F.2d 449, 451 (5th Cir. 1981).
Accordingly, it is ORDERED that Ryan’s motion for a COA is GRANTED
solely on the ineffective-assistance-of-counsel issue. The
judgment is VACATED and the case REMANDED for further development
in the district court.
3