Opinion
No. 10-50259 Summary Calendar.
August 18, 2010.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.
Fernando Valdez, Jr., Fort Worth, TX, pro se.
Appeal from the United States District Court for the Western District of Texas, USDC No. 6:10-CV-28.
Before WIENER, PRADO, and OWEN, Circuit Judges.
Fernando Valdez, Jr., federal prisoner # 29537-280, moves for a certificate of appealability (COA) to appeal the district court's denial of his 28 U.S.C. § 2255 motion. Valdez is serving a 252-month sentence following his guilty plea to possession with intent to distribute at least 500 grams of methamphetamine and possession of a firearm during the commission of a drug trafficking crime. As part of his plea agreement, Valdez waived the right to appeal his sentence either directly or collaterally.
In his § 2255 motion, Valdez argued that trial counsel rendered ineffective assistance by failing to file a notice of appeal as instructed. The failure to file a requested notice of appeal is ineffective assistance of counsel, even without a showing that the appeal would have merit. See Roe v. Flores-Ortega, 528 U.S. 470, 477, 483-86, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).
Valdez has made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007). The record does not conclusively show that Valdez did not ask counsel to file a notice of appeal, making an evidentiary hearing on that issue necessary. See Tapp, 491 F.3d at 266. A COA is granted, the district court's judgment is vacated, and the case is remanded for further development on that issue. Valdez's motion to proceed in forma pauperis (IFP) is granted.
COA AND IFP GRANTED; VACATED AND REMANDED.