                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   February 3, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                           No. 04-10545
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DANIEL RAY HECKLER,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                      USDC No. 1:01-CR-81-1-C
                       USDC No. 1:03-CV-155-C
                        --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Daniel Ray Heckler appeals the denial of his 28 U.S.C.

§ 2255 motion in which he challenged his conviction and sentence

after pleading guilty to conspiracy to commit odometer fraud and

interstate transportation of fraudulent securities.     A

certificate of appealability was granted on the issue whether

Heckler’s counsel was ineffective for failing to file a notice of

appeal.   Heckler argues that he should be granted an out-of-time



     *
       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this opinion should not be published and is not precedent except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. 04-10545
                                -2-

appeal because he expressly asked counsel to file a notice of

appeal and counsel failed to do so.

     To demonstrate ineffective assistance of counsel based on a

claim that counsel failed to file a notice of appeal, a defendant

must show that the failure to file fell below an objective

standard of reasonableness and that it prejudiced the defendant.

See Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000).    Failing to

file a notice when requested to do so can constitute deficient

performance.   Id. at 477-78.   As to prejudice, the defendant need

not demonstrate that he would have been able to raise meritorious

issues on appeal.   Id. at 486.    Rather, he must demonstrate only

that there is a reasonable probability that, but for counsel’s

failure, he would have appealed.     Id.

     The record establishes that Heckler lost his right to appeal

because his notice of appeal was untimely.     Heckler’s pro se

notice of appeal demonstrates that he wanted to appeal.       The

affidavit that Heckler filed to counter the Government’s motion

to dismiss his direct appeal does not address whether he

expressly told counsel that he wished to appeal.     In the

affidavit that Heckler submitted with the instant motion, he

attested under penalty of perjury that after he received his

sentence he immediately told counsel that he wanted to appeal.

Contrary to the Government’s argument, Heckler’s two affidavits

are not contradictory inasmuch as he could have told counsel of

his desire to appeal and, after not being able to contact
                             No. 04-10545
                                  -3-

counsel, could have also attempted to file his own notice of

appeal via his codefendant.

     A district court may deny a § 2255 motion without conducting

a hearing only “if the motion, files, and records of the case

conclusively show that the prisoner is entitled to no relief.”

United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).

The record does not conclusively show that Heckler is entitled to

no relief on this claim.   Contested factual issues may not be

decided on the basis of affidavits alone unless the affidavits

are supported by other evidence in the record.   United States v.

Hughes, 635 F.2d 449, 451 (5th Cir. 1981).   Given that the

Government contests Heckler’s claim, the denial of Heckler’s 28

U.S.C. § 2255 motion is vacated and the case is remanded for an

evidentiary hearing on Heckler’s claim that he instructed counsel

to file a notice of appeal.

     VACATED and REMANDED.
