     Case: 08-11223     Document: 00511672438         Page: 1     Date Filed: 11/21/2011




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

                                                                            FILED
                                                                        November 21, 2011

                                       No. 08-11223                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOE GARY RIVAS, JR.,

                                                   Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                   USDC Nos. 6:07-CV-018-C & 6:02-CR-42-1-C


Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Joe Gary Rivas, Jr. appeals the district court’s denial of his 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct his sentence. Rivas is serving life
in prison after pleading guilty to conspiracy to import five kilograms or more of
cocaine and 1,000 kilograms or more of marijuana. Rivas argues that his
counsel rendered ineffective assistance by failing to file a notice of appeal despite




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 08-11223

Rivas’s instructions to do so. Because Rivas’s counsel failed to properly consult
with Rivas regarding his desire to appeal, we REVERSE and REMAND.
                       FACTS AND PROCEEDINGS
      In November 2002, Rivas was charged with 27 counts in a 28-count sealed
indictment, along with 28 other named defendants. The indictment charged
Rivas with conspiracy to import five kilograms or more of cocaine and more than
1,000 kilograms of marijuana, participating in a continuing criminal enterprise,
conspiracy to commit money laundering, possession with intent to distribute
cocaine, distribution of cocaine, possession with intent to distribute marijuana,
and distribution of marijuana.
      In June 2004, with the assistance of his court-appointed counsel, Dennis
Reeves, Rivas pled guilty to one count of conspiracy to import five kilograms or
more of cocaine and more than 1,000 kilograms of marijuana. The district court
sentenced Rivas to a term of life imprisonment, followed by five years of
supervised release, on August 27, 2004. All remaining counts were dismissed.
      On September 20, 2004, Rivas’s counsel filed an untimely Notice of Appeal.
This court remanded to the sentencing court for a determination as to whether
the untimely filing of the notice of appeal was due to excusable neglect under
FED. R. APP. P. 4(b)(4). The reason given for the untimely filing was counsel’s
failure to “properly instruct or supervise his office staff to mail the notice of
appeal prior to the Labor Day Weekend” and therefore the notice of appeal was
mailed late without counsel’s knowledge. The sentencing court granted the
motion for untimely filing.
      On appeal, the only issue argued by counsel was that the sentencing court
determined the drug quantities in Rivas’s case in violation of the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220 (2005). In an
unpublished per curiam opinion, this court determined that Rivas’s admission
to importing at least five kilograms of cocaine and at least 1,000 kilograms of

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marijuana in his plea did not “establish that Rivas pleaded guilty to the specific
amounts of 264 kilograms of cocaine and more than 9,000 kilograms of
marijuana” as determined by the Presentence Report (“PSR”). United States v.
Rivas, 170 F. App’x 309, 310 (5th Cir. 2006). The case was remanded to the
district court to determine whether to resentence Rivas in light of the decision
in Booker. Id.
      On remand, the sentencing court found “the same sentence would be
imposed if the guidelines had been advisory, considering the factors of 18 U.S.C.
§ 3553(a)” and therefore a resentencing hearing was not necessary. The court
entered an order affirming the life sentence on March 28, 2006. Under the
procedural rules in effect at the time, an appeal of the court’s March 28 order
was due on April 11, 2006.
      On April 6, 2006, Rivas received a copy of the court’s March 28 order and
a letter dated March 29, 2006, from counsel. The letter advised Rivas that
counsel had consulted with an appellate attorney from the United States Public
Defender’s Office but had not found any basis to request a resentencing or
challenge the March 28 order and, therefore, “had no where else to go.” The
letter also was intended to end the attorney-client relationship, saying “It is
always hard to tell a client that I cannot go forward with their case . . . but that
is what I must do.” There was no mention in the letter of any deadline by which
an appeal of the March 28 order needed to be filed nor did the letter offer any
guidance about possible further legal actions Rivas could take.
      Rivas responded to counsel in a letter on April 11, 2006, which coincided
with the deadline to file an appeal. In the letter, Rivas instructed counsel to file
an appeal of the court’s March 28 order on the basis that there were no jury
findings regarding his “guilt-innocence” or the actual quantity of drugs. Counsel
acknowledges he received this letter but he is unsure of the exact day it arrived.
He did not attempt to contact Rivas after receiving the April 11 letter.

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         Rivas also claims he attempted to contact his counsel by phone in between
receiving the letter from counsel on April 6 and mailing his April 11 letter.
There is no evidence in the record to verify Rivas’s attempts to call counsel.
Rivas claims his calls from the prison phone system were not accepted by anyone
in counsel’s office and thus he was unable to leave a voice message. Counsel
claims to have no records indicating that Rivas called him between April 6 and
April 11.
         Having received no response after his April 11 letter, Rivas mailed a
second letter to counsel on May 6, 2006, asking about the status of his appeal.
The letter also requested a copy of the plea agreement and transcripts of the plea
and sentencing hearings. Counsel admits receiving this second letter but he
made no attempt to respond.
         Rivas’s counsel does however admit that at some point after April 11, the
two spoke on the phone, possibly several times, although he was not able to
recall specific dates. In a letter addressed to counsel and dated June 29, 2006,
Rivas stated he had a telephone conversation with counsel on June 25, 2006, and
on the call, counsel confirmed receipt of the April 11 and May 6 letters and told
Rivas that he did not file a notice of appeal regarding the March 28 resentencing
order.
         In April 2007, Rivas filed the 28 U.S.C. § 2255 motion to vacate, set aside,
or correct the sentence that forms the basis for this appeal. Rivas raised the
following grounds for review in his § 2255 motion:
         (1) His plea of guilty was involuntary and unintelligent because it was
based on objectively deficient advice of counsel regarding his possible sentence;
         (2) His sentence was improperly enhanced based upon hearsay evidence
and judicial, rather than jury, fact findings; and,
         (3) Counsel ineffectively failed to file an appeal after Rivas’s resentencing
and he was constructively denied counsel on appeal.

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      A magistrate judge held an evidentiary hearing in March 2008 at which
both Rivas, now represented by new counsel John Young, and his trial counsel
testified under oath. Rivas offered testimony regarding each of the grounds
raised in his § 2255 motion while his trial counsel testified about the
circumstances of Rivas’s plea and sentencing and the communications and
events surrounding the failure to appeal the March 28 resentencing order. The
magistrate subsequently issued a report and recommendation concluding that
Rivas was not entitled to relief. The district court reviewed the matter de novo,
made extensive findings of fact, adopted the magistrate’s report and
recommendation, dismissed Rivas’s motion, and denied a certificate of
appealability (“COA”). Rivas v. United States, No. 6:07-CV-018-C, 2008 WL
5262736 (N.D. Tex. Dec. 17, 2008).
      Rivas filed a timely pro se notice of appeal of the denial of his § 2255
motion. He also sought a COA from this court, arguing that (1) trial counsel
rendered ineffective assistance in connection with his guilty plea by
misinforming him that he could receive a departure below the statutory
minimum and by failing to investigate his case adequately, and (2) counsel
rendered ineffective assistance by failing to file a notice of appeal of the
sentencing court’s March 28 order. Rivas was granted a COA solely on the latter
claim. All other COA issues were carried with the case, and Rivas’s motions to
supplement the record and appoint counsel were denied.
                                 DISCUSSION
      A. Standard of Review
      Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), our review is limited to the issue enumerated in the COA. 28 U.S.C.
§ 2253(c)(1), (3). In reviewing a district court’s denial of a § 2255 motion to
vacate, set aside or correct a sentence, we review questions of fact for clear error
and questions of law de novo. United States v. Edwards, 442 F.3d 258, 264 (5th

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Cir. 2006). Any subsidiary findings of basic, historical fact made by the district
court after the § 2255 evidentiary hearing are subject to review under the clearly
erroneous standard. United States v. Molina-Uribe, 429 F.3d 514, 518 (5th Cir.
2005). These are facts “in the sense of a recital of external events and the
credibility of their narrators.” Id. at 518 n.9 (quoting Washington v. Watkins,
655 F.2d 1346, 1351 (5th Cir. Unit A Sept. 1981)). In determining whether Rivas
received effective assistance of counsel, we thus make an independent evaluation
based on the district court’s subsidiary findings.
      B. Analysis
      To demonstrate a claim for ineffective assistance of counsel, a defendant
must show that (1) “counsel’s representation fell below an objective standard of
reasonableness,” and (2) “counsel’s deficient performance prejudiced the
defendant.”   Roe v. Flores-Ortega, 528 U.S. 470, 476–77 (2000) (quoting
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). This test also applies
to claims, like Rivas’s, “that counsel was constitutionally ineffective for failing
to file a notice of appeal.” Flores-Ortega, 528 U.S. at 477.
      1. Counsel’s representation fell below an objective standard of
      reasonableness
      The Supreme Court has long held that “a lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts in a manner that
is professionally unreasonable.” Id. (citing Rodriquez v. United States, 395 U.S.
327 (1969)). This is true even when a defendant has waived his right to a direct
appeal and collateral review, such as through a waiver clause in a plea
agreement. United States v. Tapp, 491 F.3d 263, 265–66 (5th Cir. 2007).
      There are, however, finer contours to this rule because the reasonableness
inquiry established in Strickland requires us to engage in a circumstance-
specific review of the facts of the particular case. Flores-Ortega, 528 U.S. at
477–78. Because the facts of each case are different, we have avoided a bright

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line rule requiring criminal defense counsel to perfect an appeal in every
criminal conviction. White v. Johnson, 180 F.3d 648, 652 (5th Cir. 1999). Thus,
when a criminal defendant fails to inform his counsel in a timely manner that
he wishes to appeal his conviction, counsel’s failure to file a notice of appeal may
not be professionally unreasonable. See Childs v. Collins, 995 F.2d 67, 69 (5th
Cir. 1993) (affirming the denial of defendant’s ineffective assistance of counsel
claim when the defendant failed to communicate any indication of his desire to
appeal his conviction during the three-month period between his sentencing and
the filing of his habeas petition).
      However, when a defendant definitively and timely notifies his counsel
that he wishes to appeal and counsel does not file a notice of appeal, we presume
that counsel’s performance was unreasonable “because a defendant who
instructs counsel to initiate an appeal reasonably relies upon counsel to file the
necessary notice.” Flores-Ortega, 528 U.S. at 478. This is so because “filing a
notice of appeal is a purely ministerial task, and the failure to file reflects
inattention to the defendant’s wishes.” Id.
      In addition to considering whether a defendant has clearly communicated
a desire to appeal and whether such communication was made in a timely
manner, we also consider whether counsel “fully inform[ed] the defendant as to
his appellate rights.” White, 180 F.3d at 652. To meet his constitutional duty,
counsel must do more than simply give the defendant notice “that an appeal is
available or advice that an appeal may be unavailing.” Id. Instead, counsel
must advise the defendant “not only of his right to appeal, but also of the
procedure and time limits involved and of his right to appointed counsel on
appeal.” Id. (quoting United States v. Faubion, 19 F.3d 226, 231 (5th Cir.
1994)). Failure to provide such advice is constitutionally deficient performance
under Strickland. Id.



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      The determination of whether counsel properly advised his client about the
decision to appeal is an even more nuanced inquiry. When counsel is unaware
as to whether a defendant wishes to appeal, such as Rivas’s counsel prior to his
receipt of Rivas’s April 11 letter, we consider “whether counsel’s failure to
consult with the defendant itself constitutes deficient performance.”
Flores-Ortega, 528 U.S. at 478.
      As defined by the Supreme Court, the term “consult” conveys a specific
meaning: “advising the defendant about the advantages and disadvantages of
taking an appeal, and making a reasonable effort to discover the defendant’s
wishes.” Id. The Court has further stated that counsel has a constitutional duty
to consult with the defendant about an appeal “when there is reason to think
either (1) that a rational defendant would want to appeal . . . or (2) that this
particular defendant reasonably demonstrated to counsel that he was interested
in appealing.” Id. at 480. When making this determination, a court must take
into account all the information that counsel knew or should have known. Id.
      For example, if counsel advises the defendant that a guilty plea will result
in a certain sentence, the defendant agrees to the plea based on counsel’s advice,
the court imposes the expected sentence in line with counsel’s advice, the
defendant expresses no interest in appealing, and counsel indicates that there
are no nonfrivolous grounds to appeal, it is unlikely counsel’s actions would be
unreasonable if he failed to explicitly “consult” with the defendant regarding an
appeal. Id. at 479. However, if the resulting sentence following a guilty plea is
not consistent with the sentence bargained for as part of the plea or if the plea
expressly reserved some appeal rights, counsel may still be required to consult
with the defendant regarding his desire to appeal when considering all the
relevant facts and circumstances of the case. See id. at 480 (“Even in cases when
the defendant pleads guilty, the court must consider such factors as whether the
defendant received the sentence bargained for as part of the plea and whether

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the plea expressly reserved or waived some or all appeal rights. Only by
considering all relevant factors in a given case can a court properly determine
whether a rational defendant would have desired an appeal or that the
particular defendant sufficiently demonstrated to counsel an interest in an
appeal.”).
      This case rests squarely at the intersection of these prior holdings. From
Rivas’s perspective, there were several reasons counsel was ineffective: Rivas
made an affirmative request for counsel to appeal the March 28 order that
counsel failed to act upon; his plea reserved certain appeal rights; he had already
successfully appealed the subject matter of the March 28 order thereby
indicating his interest in pursuing his appeal rights; the only “advice” he
received from counsel was a letter saying it was unlikely a further appeal would
be successful; counsel failed to inform him of the procedure or time limits of
further appeals; and counsel failed to timely respond to any of his
communications. In response, the government argues that counsel was not
informed of Rivas’s desire to appeal in a timely manner and thus had no duty to
file an out-of-time appeal.      Further, counsel expressed his opinion that
additional appeals would be unavailing and thus had no reason to believe Rivas
wanted to appeal.
      In support of its arguments that counsel had no reason to think Rivas had
an interest in exercising his right to appeal, the government attempts to shift
blame back onto Rivas for failing to act quickly enough following the March 28
order, claiming “Rivas provided no explanation for why he waited five days
before sending his [April 11] letter.” This is not accurate. During the § 2255
motion evidentiary hearing, Rivas testified about the specific reasons he was
unable to send his letter to counsel until April 11. Rivas testified he received the
letter on April 6, 2006, a Thursday. In between Thursday April 6 and Tuesday
April 11 when he mailed his letter, Rivas explained that the prison was on

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                                  No. 08-11223

lockdown for one-and-a-half days, during which he was unable to leave his cell.
Furthermore, Rivas cited prison rules that restrict access to the library and a
typewriter to specific timeslots and the intervening weekend as reasons he was
unable to send his letter before Tuesday, April 11.
      Considering all the facts and circumstances as we must under Strickland,
we hold that counsel’s performance was professionally unreasonable. While the
government is correct that Rivas’s counsel may not have had a constitutional
obligation to file an out-of-time appeal, this argument focuses too narrowly on
the date Rivas’s letter was mailed and fails to take into account the surrounding
circumstances and counsel’s duty to properly consult with Rivas.
      Because counsel failed to speak in person or via telephone with Rivas
between the court’s March 28 order and the April 11 deadline, we have only the
March 28 order and counsel’s March 29 letter to Rivas to determine if counsel
was required to consult with Rivas about filing an appeal or if counsel’s letter
fulfilled that duty. Looking first at the court’s order, the language is brief and
provides no guidance about whether an appeal is available or what the appeal
deadline would be. The order also provides no discussion with respect to the
specific error identified by this court’s opinion remanding the case to determine
whether resentencing was necessary. The substance of the order simply stated
“the Court finds that the same sentence would be imposed if the guidelines had
been advisory, considering the factors of 35 U.S.C. § 3553(a). Accordingly,
resentencing is not necessary.”
      Turning to counsel’s March 29 letter, the letter did advise Rivas about the
research that counsel had done on possible grounds to appeal and expressed
counsel’s conclusion that further appeals would not be meritorious. Counsel also
indicated he would be unable to continue representing Rivas. The letter did not
include any mention of how or when an appeal of the order needed to be filed nor
did the letter provide any advice about Rivas’s ongoing right to counsel or the

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                                  No. 08-11223

ability for Rivas to file a pro se notice of appeal. Without including more,
counsel’s letter fails to meet the basic requirement in White: counsel must do
more than simply give the defendant notice “that an appeal is available or advice
that an appeal may be unavailing.” 180 F.3d at 652.
      Furthermore, counsel had a duty to consult with Rivas under the standard
established in Flores-Ortega. Unlike the examples offered by the Supreme Court
in which counsel would not have a duty to determine whether a criminal
defendant wished to appeal, Rivas’s counsel was or should have been aware of
Rivas’s likely desire to appeal the March 28 order.
      Counsel was familiar with Rivas’s desire to appeal the life sentence based
on his prior representation of Rivas through his plea, sentencing, and his first
appeal to this court. Indeed, Rivas’s April 11 letter instructing counsel to appeal
the March 28 order urged counsel to appeal the sentence again because he
believed the March 28 order did not explicitly address the error identified by a
panel of this court. In Rivas’s first appeal, counsel argued that the imposition
of a life sentence based on the PSR statement of specific quantities of cocaine
and marijuana that did not directly correspond to the charge to which Rivas pled
was error. This court agreed and remanded. See Rivas, 170 F. App’x at 310
(“[Rivas’s plea to a charge of importing at least five kilograms of cocaine and at
least 1,000 kilograms of marijuana] does not establish that Rivas pleaded guilty
to the specific amounts of 264 kilograms of cocaine and more than 9,000
kilograms of marijuana determined by the Presentence Report. . . . In light of
Booker, the district court’s determination of drug quantity constitutes error.”).
This court held that this was not harmless error and remanded. On remand, the
district court’s March 28 order failed to provide a detailed response to the error
identified, and instead simply stated the sentence would remain the same under
the § 3553(a) factors with no further analysis or explanation.



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      While counsel read the March 28 order and quickly concluded that further
appeals would not be fruitful, he is not at liberty to act solely on his own opinion
regarding further appeals in light of his knowledge of Rivas’s actions throughout
the case. Jones v. Barnes, 463 U.S. 745, 751 (1983) (“[T]he accused has the
ultimate authority to make certain fundamental decisions regarding the case,
as to whether to plead guilty . . . or take an appeal.”). Given counsel’s knowledge
of Rivas’s desire to challenge his sentence, there is reason to think Rivas may
have been be less than satisfied with the district court’s “answer” to this court’s
remand and likely wanted to appeal again. Counsel’s duty to consult required
him to at least make an honest effort to determine Rivas’s wishes—something
he made no attempt to do. Not only did counsel fail to file the requested appeal,
counsel ignored Rivas’s April 11 and May 6 letters and the record reflects that
counsel did not speak to Rivas again until late June, long after either counsel,
or Rivas acting pro se, could have filed a motion for an out-of-time appeal under
FED. R. APP. P. 4(b)(4).
      Even more troubling under the facts here, the government overlooks its
attempt to strictly apply a rule that Rivas’s counsel himself violated earlier in
the case. At this juncture it would be inconsistent to determine counsel’s actions
were professionally reasonable when on one hand Rivas, with limited access to
resources in prison, missed a deadline by a couple days and must bear the
consequences of the small mistake, yet on the other hand, counsel, with a full
staff to assist him, made an identical mistake earlier in the case with no
repercussions. Despite staff assistance, counsel missed the first appeal deadline
because he failed to properly supervise his staff to make sure the notice of appeal
was mailed on time. Counsel was able to correct his own error by simply
admitting his mistake and the district court granted leave to file an out-of-time
appeal on behalf of Rivas. Yet when Rivas narrowly missed a deadline, counsel
was not only unwilling to make any such attempt to fix the mistake, he entirely

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ignored Rivas’s request. Counsel did not offer advice such that Rivas could
proceed pro se to request an out-of-time appeal. For counsel to simply ignore
Rivas’s request to file an appeal because it arrived shortly after the deadline,
without so much as a brief responsive communication to Rivas that he would not
be filing the appeal, does not fulfill counsel’s duty to consult with a criminal
defendant under Flores-Ortega.
      Finally, we note that our determination that Rivas’s counsel acted in a
professionally unreasonable manner is cabined by the specific facts of this case.
Assuming that counsel would have acted on Rivas’s April 11 letter and filed a
notice of appeal, the filing of the notice of appeal would have been untimely and
thus would have required the filing of a motion with the district court requesting
leave to file an out-of-time appeal. FED. R. APP. P. 4(b)(4). Our determination
here is not meant to suggest in any way that counsel has an explicit duty to file
an out-of-time appeal with an accompanying motion whenever a criminal
defendant makes such a request. Instead, our reasonableness determination is
limited to the facts of this case as it relates to counsel’s duty to consult,
specifically that: (1) counsel failed to fulfill his duty to attempt to determine his
client’s wishes in a timely manner; (2) when he learned of his client’s desire to
appeal in what was likely a matter of days or at most a week or two after the
deadline, he not only failed to act on Rivas’s request but also failed to make any
timely attempt to consult with Rivas despite his prior knowledge of Rivas’s
desires; and (3) counsel did not inform Rivas that he had not, and would not, be
filing the appeal.
      2. Counsel’s deficient performance prejudiced Rivas
      Having found that Rivas’s counsel did not meet an objective standard of
reasonableness, we consider the second prong under Strickland: whether
counsel’s deficient performance prejudiced Rivas.



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      When considering prejudice in a case involving counsel’s failure to file an
appeal, we do not require a defendant to show that his appeal would have had
merit. Tapp, 491 F.3d at 265 (citing Flores-Ortega, 528 U.S. at 486). The reason
the defendant need not make this showing follows from the reasoning in
Strickland that when counsel’s acts render a court proceeding unreliable or
nonexistent, we presume prejudice with no further showing from the defendant
of the merits of his claims. Flores-Ortega, 528 U.S. at 484. Thus, “when
counsel’s constitutionally deficient performance deprives a defendant of an
appeal that he otherwise would have taken, the defendant has made out a
successful ineffective assistance of counsel claim entitling him to an appeal.” Id.
      As such, “the defendant must only demonstrate that there is a reasonable
probability that, but for counsel’s failure, he would have timely appealed.” Tapp,
491 F.3d at 265. Our focus therefore is whether Rivas can demonstrate that,
but for counsel’s deficient performance, i.e. counsel’s failure to consult, he would
have appealed the district court’s March 28 order in a timely manner. Flores-
Ortega, 528 U.S. at 484 (holding that a defendant can demonstrate prejudice by
showing that “there is a reasonable probability that, but for counsel’s deficient
failure to consult with him about an appeal, he would have timely appealed”);
see also White, 180 F.3d at 653 (“To establish prejudice, [a defendant] must show
that counsel’s failure to fully inform him of his appellate rights actually caused
him to lose the right to appeal.”).
      Here, we have little trouble concluding that if counsel had properly
consulted with Rivas by either asking Rivas if he wanted to appeal or informing
Rivas about the procedures and time limits to take an appeal of the March 28
order, Rivas would have timely appealed or, at minimum, expressed his desire
to appeal to counsel by the April 11 deadline. In fact, despite receiving no
guidance as to the deadline for appealing the March 28 order, Rivas made his



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                                  No. 08-11223

best attempt at notifying counsel in a timely manner by sending counsel a letter
containing his appeal request on the deadline.
      Considering the basic logistics and time constraints under which Rivas
was working, it is unclear whether he could have even notified counsel to file a
notice of appeal prior to the deadline. This becomes apparent by looking at the
sequence of events: (1) Rivas received counsel’s letter sometime on April 6; (2)
any responsive letter needed to arrive in counsel’s office either sometime on
April 10 or the morning of April 11 in order for counsel to make a timely filing;
(3) the lack of any mail service on Sunday April 9; and (4) a minimum one or two
days of in-transit time for Rivas’s letter to get from the prison in Leavenworth,
Kansas to counsel’s office in Lubbock, Texas. Adding these up, its not clear what
more Rivas could have done to have a letter in counsel’s hands any faster. In
fact, we note that counsel’s letter, mailed on March 29, did not reach Rivas until
April 6—a period of eight days including the weekend. If we were to assume the
same time line for Rivas to mail a responsive letter to counsel, it would have
been impossible for Rivas to meet the appeal deadline. Even if Rivas could have
written a response to counsel and given it to prison officials for mailing on the
same day he received counsel’s letter, Rivas’s letter requesting an appeal would
have arrived at counsel’s office on April 14, three days after the deadline to
appeal. Rivas’s actions suggest, absent counsel’s deficient performance, Rivas
would have timely appealed the court’s order.
      Separately, we note that the district court’s determination that Rivas could
not have suffered prejudice because his appeal would have been dismissed as
untimely relies on pre-Flores-Ortega jurisprudence and is not correct. The
proper analysis is not whether Rivas’s appeal would have been subject to
dismissal as untimely but instead whether counsel’s ineffective assistance, such
as his failure to consult with Rivas, frustrated Rivas’s ability to file a timely
appeal.

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                                  No. 08-11223

      The government makes a similar mistake, arguing that a presumption of
prejudice should not apply because Flores-Ortega only addressed the
presumption in the context of the ministerial task of filing a timely appeal and
did not specifically address the possibility of an out-of-time appeal. The problem
with the government’s argument is that we need not rely on a simple
presumption of prejudice when it is apparent that counsel’s actions actually
resulted in Rivas losing his right to appeal. As discussed above, counsel did not
fulfill his duty to consult with Rivas and failed to respond to any of Rivas’s
communications until after the deadline for even filing an out-of-time appeal had
passed, thus preventing Rivas from making an appeal.
      The government also argues that Rivas should be required to demonstrate
prejudice by showing that, had counsel moved for permission to file an untimely
appeal, there is a reasonable probability it would have been granted. (Red Br.
13). Even if we assume the government is correct on this point, we believe Rivas
has met this burden considering this record. Rivas testified at the evidentiary
hearing about the prison environment limitations that resulted in his inability
to mail his letter until April 11. The district court granted a similar motion for
an untimely appeal when Rivas’s own counsel missed an appeal deadline simply
for failing to make sure his staff mailed the notice of appeal in a timely manner.
Had Rivas’s logistical constraints been explained to the district court, it seems
that there is a reasonable probability the district court would have granted
permission to file an untimely notice of appeal.
      C. Rivas’s Additional Claims
      Because we hold that Rivas was denied effective assistance of counsel, the
grant of an out-of-time appeal requires dismissal without prejudice of his § 2255
motion and reentry of the judgment of conviction to permit an appeal. See
United States v. West, 240 F.3d 456, 459 (5th Cir. 2001) (citing Mack v. Smith,
659 F.2d 23, 25–26 (5th Cir. Unit A 1981) (providing that when leave to file an

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  Case: 08-11223   Document: 00511672438      Page: 17   Date Filed: 11/21/2011


                                 No. 08-11223

out-of-time appeal is granted, the district court should reinstate the criminal
judgment to trigger the running of a new Rule 4(b) appeal period)). Accordingly,
we do not address Rivas’s remaining COA claims carried with the case. Mack,
659 F.2d at 26.
                               CONCLUSION
      For the foregoing reasons, the judgment of the district court is
REVERSED, Rivas’s § 2255 motion is dismissed without prejudice, and the case
is REMANDED. The district court shall re-enter the judgment of conviction to
trigger the new time period for filing an appeal under FED. R. APP. P. 4(b).




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