Martinez v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-40079 Summary Calendar __________________

JUAN GARCIA MARTINEZ,

Petitioner-Appellant,

versus

WAYNE SCOTT, Director, Texas Department of Criminal Justice, Institutional Division,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. CA-B-91-194 - - - - - - - - - - February 9, 1996

Before JOLLY, JONES and STEWART, Circuit Judges.

PER CURIAM:*

Juan Garcia Martinez moves this Court for a certificate of

probable cause (CPC).

Martinez argues that he should have been appointed counsel

for the evidentiary hearing conducted by the district court to

determine whether his trial counsel failed to file a timely

notice of appeal.

Appointment of counsel is mandatory if a district court

determines that an evidentiary hearing is required and a

petitioner qualifies for appointment under 18 U.S.C. § 3006A.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-40079 -2-

Lamb v. Estelle, 667 F.2d 492, 496-97 (5th Cir. 1982). As the

district court had already adjudged him a pauper, Martinez was

qualified under § 3006A(g). Therefore, the district court should

have appointed counsel for Martinez. See Bell v. Watkins, 692

F.2d 999, 1014 (5th Cir. 1982), cert. denied, 464 U.S. 843

(1983).

Martinez's motion for CPC is GRANTED. The judgment of the

district court is VACATED and the case REMANDED for the district

court to conduct an evidentiary hearing with Martinez represented

by counsel.