          IN THE UNITED STATES COURT OF APPEALS
                                           United States Court of Appeals
                   FOR THE FIFTH CIRCUIT            Fifth Circuit
                                                                     F I L E D
                               No. 06-11004                        September 18, 2007
                             Summary Calendar
                                                                 Charles R. Fulbruge III
                                                                         Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

HENRY LAWRENCE HEREFORD

                                          Defendant-Appellant


                Appeal from the United States District Court
                     for the Northern District of Texas
                           USDC No. 5:05-CV-190
                           USDC No. 5:04-CR-2-ALL


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Henry Lawrence Hereford, federal prisoner # 30178-177, seeks a certificate
of appealability (COA) to appeal the denial of his 28 U.S.C. § 2255 motion,
wherein he challenged his conviction for distribution of more than 50 grams of
cocaine base (crack cocaine). This court may not grant a COA unless Hereford
makes a substantial showing of the denial of a constitutional right. See 28
U.S.C. § 2253(c)(2). When the district court’s denial of relief is based upon


      *
      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should not be published and is not precedent except under the limited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. 06-11004

procedural grounds, “a COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the [motion] states a valid
claim of the denial of a constitutional right and that jurists of reason would find
it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the court denies relief on the
merits, the movant must “demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Id.
      With the benefit of liberal construction, Hereford argues that his guilty
plea and waiver of appeal were invalid, that his sentence violated the Sixth
Amendment, and that the district court should have held his § 2255 motion in
abeyance. Hereford has not made the necessary showing for a COA with respect
to these claims. See Slack, 529 U.S. at 484.
      Hereford also argues that his trial counsel rendered ineffective assistance
by failing to file a notice of appeal as requested. Hereford made this argument
in the district court along with other claims of ineffective assistance. The
district court adopted the Government’s reasoning that Hereford failed to prove
prejudice.
      A failure to file a requested notice of appeal is ineffective assistance of
counsel even without a showing that the appeal would have merit. Roe v.
Flores-Ortega, 528 U.S. 470, 477, 486 (2000). After the district court ruled in the
instant case, we held that “the rule of Flores-Ortega applies even where a
defendant has waived his right to direct appeal and collateral review.” United
States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007). “[I]f the petitioner is able to
demonstrate by a preponderance of the evidence that he requested an appeal,
prejudice will be presumed and the petitioner will be entitled to an out-of-time
appeal, regardless of whether he is able to identify any arguably meritorious
grounds for appeal that would not be precluded by the terms of his appeal
waiver.” Id. The record in the instant case does not conclusively show whether



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and when Hereford requested that his counsel file an appeal. Therefore, in light
of Tapp, an evidentiary hearing is necessary. See Tapp, 491 F.3d at 266.
      Accordingly, Hereford’s request for a COA is GRANTED solely on this
claim of ineffective assistance. The district court’s judgment is VACATED and
the case REMANDED for further development in the district court.




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