     Case: 12-50477       Document: 00512362308         Page: 1     Date Filed: 09/04/2013




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

                                                                            FILED
                                                                        September 4, 2013
                                     No. 12-50477
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAUL RAYMUNDO PENA-GARAVITO, also known as Raul Pena,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 2:12-CV-10


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Raul Raymundo Pena-Garavito, federal prisoner # 60130-280, appeals the
district court’s denial of his 28 U.S.C. § 2255 motion, which challenged his
conviction for possession with intent to distribute cocaine. He argues that the
district court abused its discretion by denying, without holding an evidentiary
hearing, his claim that counsel was ineffective for failing to file a notice of appeal
from the judgment of conviction.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50477

      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, 477-80, 484 (2000).
Failing to file a notice when requested to do so can constitute deficient
performance. Id. at 477-78.
      A district court may deny a § 2255 motion without conducting a hearing
only if “the motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief[.]” § 2255(b); United States v. Bartholomew,
974 F.2d 39, 41 (5th Cir. 1992). 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). A
district court’s decision to deny an evidentiary hearing is reviewed for an abuse
of discretion. Bartholomew, 974 F.2d at 41.
      Nothing in the record outside of counsel’s affidavit directly refutes Pena-
Garavito’s unsworn declaration, made under penalty of perjury, that he asked
counsel to file an appeal. Moreover, Pena-Garavito’s unsworn declaration, made
under penalty of perjury, carried the same “force and effect” as counsel’s
affidavit. See 28 U.S.C. § 1746; Hart v. Hairston, 343 F.3d 762, 764 n.1 (5th Cir.
2003). The fact that Pena-Garavito was advised of his right to appeal during
sentencing and that counsel may have advised Pena-Garavito that he would not
represent him on appeal does not preclude the possibility that Pena-Garavito
asked counsel to take on the ministerial task of filing a notice of appeal on his
behalf. See Flores-Ortega, 528 U.S. at 477. As the record fails to conclusively
establish that Pena-Garavito did not instruct counsel to file a notice of appeal,
the district court abused its discretion in failing to hold an evidentiary hearing.
The denial of Pena-Garavito’s § 2255 motion is VACATED and the case is
REMANDED to the district court for an evidentiary hearing on Pena-Garavito’s
claim that he instructed counsel to file a notice of appeal. Pena Garavito’s

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                               No. 12-50477

motion for leave to supplement his appellate brief with a copy of his § 2255
motion is DENIED as his complete § 2255 motion is already contained in the
record.




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