United States v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-30437 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR WILLARD JOHNSON, III,

Defendant- Appellant.

--------------------------------------------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 00-CV-3772-S 99-CR-374-ALL-S --------------------------------------------------------- June 21, 2002

Before SMITH, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

Oscar Willard Johnson argues that the district court erred in dismissing his 28 U.S.C. § 2255

motion and in failing to grant him an out-of-time direct appeal. Johnson argues that his counsel failed

to file a direct appeal despite his request that counsel do so.

“[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

(2000). If co unsel fails to file a requested appeal, a defendant is entitled to a new appeal without

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. showing that his appeal would have merit because he reasonably relied on counsel to file the

necessary notice. Id.

The district court rejected Johnson’s allegation that he had instructed his counsel to file an

appeal. However, the record does not contain an affidavit from counsel or any other independent

evidence showing that Johnson did not make such a request or clarifying the nature of any discussions

Johnson had with his counsel. Thus, the record does not conclusively show that Johnson was not

entitled to an out-of-time appeal.

The district court abused its discretion in denying Johnson’s 28 U.S.C. § 2255 motion without

obtaining evidence on whether Johnson was deprived of his right to a direct appeal as a result of the

ineffective assistance of counsel. See United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).

The dismissal of the motion is VACATED and the case is REMANDED to the district court to obtain

the evidence necessary to resolve this issue.

VACATED AND REMANDED.

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