United States v. Rachel

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 25, 2000
• Docket: 99-30381
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-30381 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM MAC RACHEL,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana USDC Nos. 98-CV-1926 & 96-CR-50085-ALL _________________________________________________________________ May 24, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

William Mac Rachel (federal prisoner #09416-035) appeals the

district court’s denial of relief under 28 U.S.C. § 2255.1 The

sole question before us is the issue upon which Rachel was

previously granted a certificate of appealability: whether defense

counsel was ineffective for failing to perfect a direct criminal

appeal on Rachel’s behalf. Rachel maintains that his counsel

failed to file a notice of appeal despite being requested to do so

and that counsel informed him of that fact only after the ten-day

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 Rachel’s motion to expedite this appeal is DENIED. appeals period had passed. The government counters that Rachel

waived his right to appeal.

Along with its answer filed in the district court, the

Government submitted the affidavit of Rachel’s attorney, William

King. In the affidavit, King stated that, immediately after

sentencing, he informed Rachel of his right to appeal and of the

ten-day time frame within which to file a notice of appeal. King

also stated in the affidavit that he told Rachel that he did not

believe a direct appeal would be viable.

In response to King’s affidavit, Rachel submitted a letter

that he received from King, which was dated after the expiration of

the ten-day period for filing a notice of appeal. See Fed. R. App.

P. 4(b)(1)(A). In that letter, King stated that he had researched

the appeal that Rachel had asked him to file and that his research

led him to believe that an appeal would be frivolous. King also

stated that he was enclosing a motion to withdraw as counsel and an

“example” of a notice of appeal, which Rachel could file within ten

days of his receipt of counsel’s letter. The district court denied

the instant claim as well as Rachel’s other claims without

elaboration.

A district court may deny § 2255 relief without making any

findings of fact and conclusions of law and without holding an

evidentiary hearing only if the record conclusively shows that the

movant is entitled to no relief. United States v. Bartholomew, 974

F.2d 39, 41 (5th Cir. 1992); United States v. Edwards, 711 F.2d

2 633, 633 (5th Cir. 1983); § 2255. The record in the instant case

does not conclusively show that Rachel is entitled to no relief.

The letter submitted by Rachel supports his contention that counsel

initially agreed to file an appeal on his behalf and, only after

the time for filing an appeal had lapsed, informed Rachel that he

would not do so. See Perez v. Wainwright, 640 F.2d 596, 598 (5th

Cir. Mar. 1981)(“[W]hen a lawyer . . . does not perform his promise

to his client that an appeal will be taken, fairness requires that

the deceived defendant be granted an out-of-time appeal.”)(internal

quotations, citation, and footnote omitted). Accordingly, the

district court’s order denying § 2255 relief is VACATED only as to

the issue on which COA was granted, and the case is REMANDED to the

district court to hold an evidentiary hearing and to make the

appropriate findings of fact and conclusions of law. See Mack v.

Smith, 659 F.2d 23, 25-26 (Former 5th Cir. Unit A Oct.

1981)(discussing proper procedure on remand).

MOTION TO EXPEDITE APPEAL DENIED; VACATED AND REMANDED.