                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 98-50568
                           Summary Calendar


        UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

             versus

        BENJAMIN DELGADO NAVEJAR, JR.,

                                             Defendant-Appellant.



             Appeal from the United States District Court
                   for the Western District of Texas
               USDC Nos. SA-97-CA-532 and SA-90-CR-170-1


                             July 26, 1999

Before GARWOOD, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

        Benjamin Delgado Navejar, Jr., federal prisoner # 43691-080,

appeals the district court’s denial of his motion to vacate his

sentence pursuant to 28 U.S.C. § 2255.   Navejar asserts that he was

not informed of his right to have counsel appointed on direct

appeal and that he was denied his right to counsel.      Navejar filed

his appeal pro se.

        The district court misconstrued Navejar’s argument as an

argument that he was denied the right to appeal, rather than that


    *
     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opinion should not be published and is not precedent except under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.
he was denied the right to counsel on appeal.            Although Navejar was

informed at sentencing of his right to proceed in forma pauperis on

appeal, the    sentencing   transcript       does   not   show    that   he   was

informed of his right to court-appointed counsel on appeal.

     The district court erred in holding that Navejar could not

establish    prejudice   from   his       attorney’s    alleged    ineffective

assistance, because he did not request his attorney to file an

appeal, and because the issues he raised on direct appeal were

frivolous.    However, Navejar averred that he requested his counsel

to appeal but counsel refused to do so because Navejar could not

pay his fee, and that counsel did not advise Navejar of his right

to court-appointed counsel, and that Navejar was not aware of that

right and for that reason and because he was indigent he appealed

pro se, but would have requested appointment of counsel for appeal

had he known he was entitled to same.          The record as it stands now

does not expressly refute these averments.             It is not necessary to

show prejudice when there is an actual or constructive denial of

counsel on direct appeal of a criminal conviction.            Penson v. Ohio,

488 U.S. 75, 88-89 (1988).

     Because factual issues remain regarding whether Navejar was

informed or otherwise aware of his right to court-appointed counsel

on appeal and whether he was then indigent, the judgment of the

district court is VACATED and the case is REMANDED for proceedings

consistent with this opinion, including an evidentiary hearing to

determine whether Navejar was informed (or otherwise aware) of his

right to appointed counsel on appeal (and, if not, whether had he


                                      2
been so informed or aware he would have procured appointed counsel

on appeal).



                                        VACATED and REMANDED




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