United States v. Terril Duckett , 582 F. App'x 525 ( 2014 )

Case: 14-40190 Document: 00512794351 Page: 1 Date Filed: 10/06/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 6, 2014
No. 14-40190
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TERRIL MONTEIZ DUCKETT,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:13-CV-51
Before CLEMENT, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Terril Monteiz Duckett, federal prisoner # 61913-066, proceeding pro se,
applies for a certificate of appealability (COA) to appeal the denial of his 28
U.S.C. § 2255 motion, wherein he challenged his guilty-plea conviction and
sentence on one count of conspiring to possess with intent to distribute five
kilograms or more of cocaine. A COA will be granted “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). This standard is
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-40190
satisfied “by demonstrating that jurists of reason could disagree with the
district court’s resolution of [the movant’s] constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 327; see also Slack v. McDaniel, 529
U.S. 473, 484 (2000).
In his § 2255 motion Duckett raised four claims; however, in his COA
filing in this court he raises only one of these claims, which we discuss below.
Although pro se briefs are afforded liberal construction, even pro se litigants
must brief arguments in order to preserve them. Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993). The claims not addressed by Duckett in his COA
filing are deemed abandoned. See Hughes v. Johnson, 191 F.3d 607, 613 (5th
Cir. 1999). A COA is denied as to these claims.
Duckett argues that reasonable jurists would debate the correctness of
the district court’s dismissal of his claim that his counsel was ineffective for
failing to file a requested notice of appeal. In denying relief on this claim, the
district court referred to an affidavit submitted by Duckett’s trial counsel, who
swore that Duckett did not ask that a notice of appeal be filed. However,
Duckett filed in the district court a declaration pursuant to 28 U.S.C. § 1746
in which he averred that, during a meeting following sentencing, he requested
that his attorney file an appeal.
To demonstrate ineffective assistance of counsel based on a claim that
counsel failed to file a requested 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
or if counsel fails to consult with the client on the matter when counsel has a
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No. 14-40190
constitutionally imposed duty to do so. Id. at 477-78. The defendant need not
demonstrate prejudice by showing that he would have been able to raise a
meritorious issue on appeal. See id. at 486. Rather, “when counsel's
constitutionally deficient performance deprives a defendant of an appeal that
he otherwise would have taken, the defendant has made out a successful
ineffective assistance of counsel claim entitling him to an appeal.” Id. at 484.
A district court must hold an evidentiary hearing and make findings of
fact regarding a § 2255 motion, “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled to no relief.”
§ 2255(b); United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992). The
record shows that there is a conflict in the accounts given by Duckett and his
attorney as to whether Duckett requested that counsel file an appeal. In view
of the foregoing, the district court erred by denying relief on Duckett’s claim
without holding a hearing and making findings of fact. Accordingly, we grant
a COA on this claim, vacate in part the denial of § 2255 relief, and remand this
claim for further proceedings. Duckett’s motion to proceed in forma pauperis
(IFP) on appeal is granted.
COA MOTION GRANTED IN PART AND DENIED IN PART;
VACATED IN PART AND REMANDED FOR FURTHER PROCEEDINGS;
IFP MOTION GRANTED.
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