United States v. Thomas

Opinion

No. 99-41025 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-41025 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MELANIE FAITH THOMAS,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC Nos. 4:98-CV-349 4-97-CR-69-ALL - - - - - - - - - - May 15, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Melanie Faith Thomas, Texas state prisoner # 06745-078,

requests this court to grant him a certificate of appealability

(COA) to appeal the district court’s dismissal of her 28 U.S.C.

§ 2255 motion. In her request for a COA, Thomas raised the

following claims of ineffective assistance of counsel:

(1) counsel failed to file a notice of appeal despite multiple

requests; (2) counsel failed to object to the Government’s breach

of the plea agreement; (3) counsel failed to object to a sentence

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-41025 -2-

enhancement based on possession of a firearm during a drug

trafficking offense; (4) counsel failed to request a downward

adjustment based on being a minor or minimal participant; and

(5) counsel failed to object to the drug quantity attributed to

Thomas at sentencing.

In her § 2255 motion, Thomas alleged that she requested her

court-appointed attorney to file an appeal on her behalf, but

that counsel failed to do so. Counsel submitted an affidavit

stating that Thomas did not request an appeal. The failure of

counsel to effect an appeal of right upon request of her client

may constitute ineffective assistance, if the client relied upon

counsel’s unprofessional errors and it resulted in the denial of

a right to appeal. See Penson v. Ohio, 488 U.S. 75, 88-89

(1988); United States v. Gipson, 985 F.2d 212, 214 (5th Cir.

1993). Without conducting an evidentiary hearing, the district

court credited counsel’s affidavit and found Thomas’ allegations

to be mere “conclusory allegations.”

The district court abused its discretion when it resolved

without the benefit of an evidentiary hearing the issue whether

Thomas requested that her attorney file an appeal. See United

States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998).

Contested issues of fact in a § 2255 case may not be decided on

the basis of affidavits alone unless the affidavits are supported

by other evidence in the record. United States v. Hughes, 635

F.2d 449, 451 (5th Cir. 1981). Thomas would have been entitled

to relief in the form of an out-of-time appeal if her factual

allegations were proved true; therefore, an evidentiary hearing No. 99-41025 -3-

was required. See Mack v. Smith, 659 F.2d 23, 25-26 (5th Cir.

1981).

Accordingly COA is GRANTED on the issue whether the district

court abused its discretion when it denied Thomas’ § 2255 motion

without an evidentiary hearing and on the issue whether counsel

was ineffective for failing to file an appeal. The district

court’s order is VACATED and the case REMANDED to the district

court to conduct an evidentiary hearing on this issue. We

pretermit consideration of Thomas’ remaining claims pending a

determination whether she is entitled to an out-of-time appeal.

See Mack, 659 F.2d at 26.

COA GRANTED in part; VACATED and REMANDED.