     Case: 11-30411     Document: 00511739109         Page: 1     Date Filed: 01/27/2012




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                               Fifth Circuit

                                                                            FILED
                                                                         January 27, 2012
                                     No. 11-30411
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RICHARD A. HIGGINS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CV-4268
                             USDC No. 2:09-CR-402-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Richard A. Higgins, federal prisoner # 31322-034, appeals from the denial
of his 28 U.S.C. § 2255 motion, in which he argued that trial counsel was
ineffective for failing to file a notice of appeal when instructed to do so. The
district court assumed that counsel had failed to file a notice of appeal, but found
that Higgins could not demonstrate prejudice arising from this presumed failure,
as Higgins had waived his right to appeal.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30411    Document: 00511739109      Page: 2    Date Filed: 01/27/2012

                                  No. 11-30411

      To demonstrate ineffective assistance of counsel based on a claim that
counsel failed to file a notice of appeal, a defendant must show that counsel
performed deficiently and that a reasonable probability exists that, but for
counsel’s deficient conduct, the defendant would have timely appealed. Roe v.
Flores-Ortega, 528 U.S. 470, 476-77, 484, 486 (2000). Counsel’s performance is
deficient if counsel disregards his client’s wishes concerning filing an appeal. Id.
at 477-78. The defendant need not demonstrate that he would have been able
to raise a meritorious issue on appeal. Id. at 483-86. Instead, if the petitioner
demonstrates by a preponderance of the evidence that he ordered counsel to file
an appeal, prejudice will be presumed, and the petitioner will be able to file an
out-of-time appeal. United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007).
The defendant need only show “that there is a reasonable probability that, but
for counsel’s failure, he would have timely appealed.” Id. at 265. “[T]he rule of
Flores-Ortega applies even in cases where a defendant has waived his right to
direct appeal and collateral review.” Id. at 266.
      The district court erred by basing the denial of § 2255 relief on Higgins’s
appeal waiver provision. See id. Additionally, Higgins alleged in his verified
§ 2255 motion that he directed counsel to file a notice of appeal and that counsel
did not do so. The district court did not hold an evidentiary hearing, and the
Government placed no evidence in the record indicating that Higgins did not
direct counsel to file a notice of appeal. The record before this court is silent as
to whether there was a reasonable probability that Higgins would have taken an
appeal but for counsel’s alleged failure to file a notice of appeal. See Tapp, 491
F.3d at 266.
      If the evidence does not “conclusively show” whether the petitioner
requested that counsel file an appeal, then the district court should hold an
evidentiary hearing on the issue. See id. The evidence does not conclusively
show whether Higgins directed counsel to file a notice of appeal. The district
court thus should hold an evidentiary hearing on remand.
      VACATED AND REMANDED.

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