                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 27, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-40350
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RICK ALVAREZ, JR,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                       USDC No. 2:02-CV-431
                      USDC No. 2:01-CR-64-5
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Rick Alvarez, Jr., federal prisoner #98176-079, appeals the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate,

set aside, or correct sentence challenging his guilty-plea

conviction and sentence for conspiracy to possess with intent to

distribute more than five kilograms of cocaine.   This court

granted Alvarez a certificate of appealability on the issue of

whether the district court erred by denying his claim that his

counsel was ineffective for failing to appeal the 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this opinion should not be published and is not precedent except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. 04-40350
                                -2-

imposed without holding an evidentiary hearing.    United States v.

Alvarez, No. 04-40350 (5th Cir. Sept. 21, 2004) (unpublished).

Alvarez argues that his counsel was ineffective because he did

not appeal the sentence imposed after Alvarez requested that one

be filed and that the district court erred by denying this claim

without holding an evidentiary hearing.

     We review a district court’s denial of a 28 U.S.C. § 2255

motion without holding an evidentiary hearing for an abuse of

discretion.   United States v. Cervantes, 132 F.3d 1106, 1110 (5th

Cir. 1998).   The 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, 483 (2000).   Construing Alvarez’s allegations liberally, see

Haines v. Kerner, 404 U.S. 519, 520 (1972), Alvarez presented a

facially adequate claim of ineffective assistance of counsel that

involved a contested issue of fact, and contrary to the district

court’s determination that Alvarez made no sworn statements to

support his claim, Alvarez’s § 2255 motion was made under penalty

of perjury and was, therefore, competent evidence that the

district court should have considered.    28 U.S.C. § 1746; Hart v.

Hairston, 343 F.3d 762, 764 n.1 (5th Cir. 2003).   As a result,

the district court abused its discretion by denying Alvarez’s

claim based on affidavits without holding an evidentiary hearing.

See Brown v. Johnson, 224 F.3d 461, 466-67 (5th Cir. 2000);

United States v. Hughes, 635 F.2d 449, 451 (5th Cir. Unit B
                           No. 04-40350
                                -3-

1981).   The district court’s denial of Alvarez’s ineffective

assistance of counsel claim is VACATED and this case is REMANDED

to the district court for further proceedings.

     Alvarez additionally seeks leave to file a supplemental

brief in which he seeks to raise, for the first time, the

argument that his sentence was imposed in violation of the Sixth

Amendment under Blakely v. Washington, 542 U.S. 296 (2004), and

United States v. Booker, 125 S. Ct. 738 (2005).   We will not

consider this argument because it was raised for the first time

in an appeal from the denial of a collateral attack upon

Alvarez’s sentence.   See Whitehead v. Johnson, 157 F.3d 384, 388

(5th Cir. 1998).   Alvarez’s motion for leave to file supplemental

brief is DENIED.   Alvarez’s motion for appointment of counsel is

also DENIED.

     VACATED AND REMANDED; MOTION FOR LEAVE TO FILE SUPPLEMENTAL

BRIEF DENIED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.
