     Case: 13-41149      Document: 00513087259         Page: 1    Date Filed: 06/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-41149
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 22, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

GERARDO GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:12-CV-176


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Gerardo Garcia, federal prisoner # 15074-179, was convicted of
conspiracy to possess with intent to distribute more than 50 grams of
methamphetamine, possession with intent to distribute more than 50 grams of
methamphetamine, and importing into the United States from Mexico more
than 50 grams of methamphetamine. Garcia was sentenced to concurrent life
sentences. The mandate affirming Garcia’s convictions and sentences on direct


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-41149       Document: 00513087259    Page: 2   Date Filed: 06/22/2015


                                  No. 13-41149

appeal issued on September 7, 2011. Garcia sought 28 U.S.C. § 2255 relief
arguing, inter alia, that counsel rendered ineffective assistance by failing to
advise him of the disposition of his direct appeal, thereby depriving him of the
opportunity to file a timely petition for a writ of certiorari with the Supreme
Court. The district court granted Garcia a certificate of appealability on the
ineffectiveness issue.
      Under this court’s Plan for Representation on Appeal Under the
Criminal Justice Act (CJA Plan), “[p]romptly after the court of appeals’
decision issues, appointed counsel must advise the client in writing of the right
to seek further review by filing a petition for writ of certiorari with the United
States Supreme Court.” CJA Plan, § 6, ¶ 4. We have previously granted § 2255
relief on claims that appellate counsel failed to advise a defendant of his ability
to seek certiorari review from the Supreme Court. See Lacaze v. United States,
457 F.2d 1075, 1076 (5th Cir. 1972); United States v. Johnson, 308 F. App’x
768, 769 (5th Cir. 2009).
      In light of the district court’s determination that Garcia’s counsel failed
to take appropriate steps to inform Garcia of the disposition of his direct appeal
and the right to seek Supreme Court review, we vacate our original judgment
and recall our prior mandate in Garcia’s direct criminal appeal, and we enter
a new judgment reaffirming the judgment of convictions and direct the
issuance of a new mandate. Garcia is advised of his renewed right to petition
the Supreme Court for certiorari to review our affirmance of his direct appeal.
Further, Garcia’s request for newly appointed counsel to aid him in the
preparation of his writ of certiorari to the Supreme Court is granted.
      Accordingly, the judgment of this court on direct appeal is VACATED,
and a new judgment is ENTERED reaffirming the judgment of convictions.
Appointment of new counsel is GRANTED.



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