United States v. Gerardo Garcia

607 F. App'x 438

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 22, 2015
• Docket: 13-41149
• Status: Unpublished

Opinion

PER CURIAM: *

Gerardo Garcia, federal prisoner # 15074-179, was convicted of conspiracy to possess with intent to distribute more than 50 grams of methamphetamine, possession with intent to distribute more than 50 grams of methamphetamine, and importing into the United States from Mexico more than 50 grams of methamphetamine. Garcia was sentenced to concurrent life sentences. The mandate affirming Garcia’s convictions and sentences on direct appeal issued on September 7, 2011. García sought 28 U.S.C. § 2255 relief arguing, inter alia, that counsel rendered ineffective assistance by failing to advise him of the disposition of his direct appeal, thereby depriving him of the opportunity to file a timely petition for a writ of certiorari with the Supreme Court. The district court granted Garcia a certificate of appealability on the ineffectiveness issue.

Under this court’s Plan for Representation on Appeal Under the Criminal Justice Act (CJA Plan), “[promptly after the court of appeals’ decision issues, appointed counsel must advise the client in writing of the right to seek further review by filing a petition for writ of certiorari with the United States Supreme Court.” CJA Plan, § 6, ¶ 4. We have previously granted § 2255 relief on claims that appellate counsel failed to advise a defendant of his ability to seek certiorari review from the Supreme Court. See Lacaze v. United States, 457 F.2d 1075, 1076 (5th Cir.1972); United States v. Johnson, 308 Fed.Appx. 768, 769 (5th Cir.2009).

In light of the district court’s determination that Garcia’s counsel failed to take appropriate steps to inform Garcia of the disposition of his direct appeal and the right to seek Supreme Court review, we vacate our original judgment and recall our prior mandate in Garcia’s direct criminal’appeal, and we entpr a new judgment reaffirming the judgment of convictions and direct the issuance of a new mandate. Garcia is advised of his renewed right to petition the Supreme Court for certiorari to review our affirmance of his direct appeal. Further, Garcia’s request for newly appointed counsel to aid him in the preparation of his writ of certiorari to the Supreme Court is granted.

Accordingly, the judgment of this court on direct appeal is VACATED, and a new judgment is ENTERED reaffirming the judgment of convictions. Appointment of new counsel is GRANTED.

* 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.