United States v. Bustamante

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 9, 1999
• Docket: 98-50744
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50744 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOE MARTINEZ BUSTAMANTE, JR.,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. SA-97-CA-520 - - - - - - - - - -

June 30, 1999

Before DAVIS, DUHE’, and PARKER, Circuit Judges.

PER CURIAM:*

Federal prisoner Joe Martinez Bustamante, Jr. appeals the

district court’s denial of his 28 U.S.C. § 2255 motion. COA was

granted on the issue whether Bustamante should be granted an out-

of-time appeal on the grounds that counsel was ineffective in

failing to prosecute his direct criminal appeal, as was

recommended by the magistrate judge.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 98-50744 -2-

The record demonstrates that counsel’s inaction denied

Bustamante his right to a direct appeal. See U.S. v. Riascos, 76

F.3d 93, 94 (5th Cir. 1996)(record supported denial-of-appellate

counsel claim when counsel filed notice of appeal but the appeal

was dismissed for lack of prosecution). The Government’s

contention that counsel was not ineffective because Bustamante

ultimately decided to pursue a collateral challenge instead of a

direct appeal is without merit. Counsel’s affidavit acknowledges

that he did not perfect the appeal; it further explains that

Bustamante’s decision to pursue a collateral challenge was made

only after the appeal had been dismissed and was the result of

counsel’s advice to pursue a collateral attack because of the

difficulties involved in reinstating the appeal. As Bustamante

points out, his decision to pursue a collateral challenge on

counsel’s advice after his appeal was dismissed is not evidence

that he had not desired to pursue a direct appeal.

The Government’s argument that Bustamante has not

demonstrated any prejudice is not well-taken. Because Bustamante

has demonstrated a constructive absolute denial of counsel,

prejudice is presumed. See Penson v. Ohio, 488 U.S. 75, 88

(1988); Sharp v. Puckett, 930 F.2d 450, 451-52 (5th Cir. 1991).

The district court erred in determining that Bustamante’s denial-

of-appellate-counsel claim is without merit. Its judgment is

REVERSED, and the case is REMANDED for further proceedings.

We do not reach the other issues raised in Bustamante’s

brief because the appeal is limited to the issue stated in the No. 98-50744 -3-

certificate of appealability. See Lackey v. Johnson, 116 F.3d

149, 151-52 (5th Cir. 1997).

REVERSED AND REMANDED.