United States v. Albarran-Moreno

70 F. App'x 215

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 15, 2003
• Docket: No. 02-40049
• Status: Published

Opinion

PER CURIAM.

*

After pleading guilty to conspiracy to distribute cocaine, Juan Albarran-Moreno** (Albarran) filed a 28 U.S.C. § 2255 motion in which he argued, inter alia, that his retained trial attorney was ineffective for failing to honor Albarran’s request to file a notice of appeal. The district court determined that a waiver-of-appeal provision contained in Albarran’s plea agreement rendered this argument moot. We granted Albarran a certificate of appealability on the issue whether the district court erred by denying § 2255 relief on this issue without resolving whether Albarran specifically asked counsel to file a notice of appeal.

“[A] lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). A defendant is not required to identify specific issues or show a likelihood of success on the merits if counsel’s deficient performance “deprived [him] of the appellate proceeding altogether.” Id. at 482-83. Furthermore, our review of the record shows that the plea agreement reserved Albarran’s right to appeal “Sentencing Guidelines determination(s)” and that the case involves at least one contested sentencing issue.

Accordingly, we VACATE the denial of § 2255 relief and REMAND to the district court for a determination whether Albarran requested that his attorney file an appeal.

VACATED AND REMANDED.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Federal prisoner No. 22234-084.