United States v. Gavin

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 4, 2001
• Docket: 00-60370
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-60370 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES W. GAVIN, also known as Charlie,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi (3:00-CV-3-B) (3:98-CR-58-1-B) -------------------- June 1, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Pursuant to our grant of a certificate of appealability,

Defendant-Appellant Charles W. Gavin, federal prisoner #10867-042,

appeals the district court’s denial of his 28 U.S.C. § 2255 motion

to vacate, set aside, or correct sentence on his claim of

ineffective assistance of counsel. This claim is based on the

refusal or failure of retained criminal defense counsel to file a

notice of appeal on Gavin’s behalf.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. The district court record establishes that Gavin was (1)

informed by his lawyer that he refused to file an appeal and (2)

advised of his right to appeal and to have an attorney appointed on

appeal if he could not afford to retain one. There is no evidence

in the record, however, showing that Gavin was advised that his

notice of appeal had to be filed within 10 days following the entry

of his judgment of conviction. If in fact Gavin was not informed

of the time within which his notice of appeal had to be filed, his

counsel’s performance would be considered deficient. That in turn

would raise the question whether Gavin’s lack of information

regarding the time within which to file a notice of appeal caused

him to lose his right to appeal, thereby constituting prejudice.

See Roe v. Flores-Ortega, 528 U.S. 470, 477, 484 (2000); White v.

Johnson, 180 F.3d 648, 651-52 (5th Cir. 1999); Norris v.

Wainwright, 588 F.2d 130, 135 (5th Cir. 1979).

Because Gavin’s 28 U.S.C. § 2255 motion and the remainder of

the record do not demonstrate conclusively that Gavin is not

entitled to relief, the district court’s failure to conduct an

evidentiary hearing before denying the motion constitutes abuse of

discretion. See 28 U.S.C. § 2255; United States v. Bartholomew,

974 F.2d 39, 41 (5th Cir. 1992). As such, we must vacate the

district court’s denial of Gavin’s 28 U.S.C. § 2255 motion with

respect to his ineffective assistance claim based on his counsel’s

failure to file a notice of appeal, and remand this case for an

evidentiary hearing on that claim.

VACATED IN PART AND REMANDED FOR EVIDENTIARY HEARING.

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