            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                         _______________

                                           m 99-60706
                                         _______________



                                 UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                              VERSUS

                                       MARLON JOHNSON,

                                                             Defendant-Appellant.


                                   _________________________

                            Appeal from the United States District Court
                              for the Southern District of Mississippi
                                        (1:97-CV-571-PG)
                                  _________________________
                                        December 7, 2000


Before POLITZ, SMITH, and PARKER,                    sistance of counsel. Concluding that the dis-
  Circuit Judges.                                    trict court should have held an evidentiary
                                                     hearing to determine whether Johnson had re-
JERRY E. SMITH, Circuit Judge:*                      quested that his attorney file a direct appeal
                                                     challenging the voluntariness of his guilty plea,
   In his motion filed pursuant to 28 U.S.C.         we remand for an inquiry into that limited
§ 2255, Marlon Johnson asserts ineffective as-       issue.

                                                                           I.
   *
                                                        Johnson pleaded guilty of conspiracy to
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                     possess with intent to distribute cocaine and
determined that this opinion should not be
                                                     conspiracy to intimidate a witness. Pursuant
published and is not precedent except under the
limited circumstances set forth in 5TH CIR.          to a plea agreement, he waived the right to
R. 47.5.4.                                           appeal his sentence and the right to contest it
collaterally.1 The district court accepted the            failing to file a direct appeal as requested.
plea and imposed sentence.
                                                                                II.
    Johnson then filed the instant § 2255                                       A.
motion, alleging that his counsel was                        Johnson and the government have taken
ineffective in that he had failed to (1) argue            turns confusing the issue of whether Johnson
diligently that Johnson should receive a                  challenges his sentence or his guilty plea.2 We
three-point reduction for acceptance of                   proceed in the only manner open to us and
responsibility; (2) file a notice of appeal as            consider whether Johnson’s counsel was in-
requested; and (3) challenge the use, for                 effective by not appealing the acceptance of
enhancement, of a prior state conviction that             the guilty plea.3 There are no non-frivolous
was allegedly constitutionally infirm. Johnson            grounds on which Johnson can challenge his
also argued that the court had failed to inquire          knowing and voluntary waiver of the right to
as to the validity of the prior conviction used           appeal his sentence. We review mixed
for enhancement.                                          questions of fact and law, such as ineffec-
                                                          tive-assistance-of-counsel claims, de novo.
   The magistrate judge issued a report and               United States v. Faubion, 19 F.3d 226, 228
recommendation that the motion be denied, to              (5th Cir. 1994).
which Johnson timely filed objections. The
district court adopted the report and denied                                     B.
Johnson’s § 2255 motion.                                     Guilty pleas that are final carry more weight
                                                          than does a mere confession; they are an
    Johnson filed a motion for a certificate of           admission that the defendant committed the
appealability (“COA”) without first having                crime of which he was accused. See United
filed a notice of appeal. This was a non-fatal            States v. Broce, 488 U.S. 563 (1989). Courts
procedural misstep, for the court construed the
COA as a notice of appeal, then determined
that a COA should not issue. This court then                 2
                                                               The government’s brief asserts that he “con-
granted Johnson’s motion for a COA on the                 cedes that it is his sentence that he wishes to ap-
issue of whether counsel was ineffective for              peal, and not the plea.” This misleading statement
                                                          is based on language in Johnson’s statement of the
                                                          case. A truer characterization of the claim on ap-
   1
     The memorandum of understanding, signed by           peal is that language regarding his sentence pre-
Johnson and explained by the district court, stated       dominates Johnson’s brief, although at one point he
that Johnson “expressly waives the right to appeal        alleges he was not aware of any “plea waiver.”
the sentence imposed in this case, or the manner in
                                                             3
which that sentence is imposed, on the grounds set              In granting a COA, we specifically rejected
forth in Section 3742, or on any ground                   Johnson’s request to grant a COA on the issue of
whatsoever, including double jeopardy and/or              whether the court erred in holding that Johnson
excessive fines, and expressly waives the right to        waived his right to argue that his counsel was in-
contest the sentence or the manner in which the           effective in failing to (1) challenge the sentence or
sentence was imposed in any post-conviction               (2) argue for a three-point reduction in the offense
proceeding, including but not limited to a motion         level. We also rejected, for want of jurisdiction,
brought under Section 2255, Title 28, United              the allegation that the government had breached the
States Code.”                                             plea agreement.

                                                      2
should proceed cautiously when a defendant                the circumstances of counsel’s challenged
seeks to reopen a guilty plea that has become             conduct, and to evaluate the conduct from
final; “the inquiry is ordinarily confined to             counsel’s perspective at the time.”
whether the underlying plea was both                      Washington, 466 U.S. at 689. A failure to
counseled and voluntary.” Id. at 569.4                    establish either deficient performance or
                                                          prejudice defeats the claim. Id. at 697.
   To prevail on a claim of ineffective
assistance of counsel, a defendant must show                 In the noncapital context, the Washington
(1) that his counsel’s performance was                    standard has been held to involve the review of
deficient in that it fell below an objective              several factors. Spriggs v. Collins, 993 F.2d
standard of reasonableness and (2) that the               85, 88 (5th Cir. 1993).
deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668,                      [I]n deciding such an ineffectiveness
689-94 (1984).         To show Washington                    claim, a court must determine whether
prejudice, a defendant must demonstrate that                 there is a reasonable probability that but
counsel’s errors were so serious as to                       for trial counsel’ s errors the defendant’s
“render[] the result of the trial unreliable or the          noncapital sentence would have been
proceeding fundamentally unfair.” Lockhart v.                significantly less harsh. In deciding
Fretwell, 506 U.S. 364, 372 (1993).                          whether such prejudice occurred, a
                                                             court should consider a number of
    “Unreliability or unfairness does not result             factors: the actual amount of the
if the ineffectiveness of counsel does not de-               sentence imposed on the defendant by
prive the defendant of any substantive or pro-               the sentencing judge or jury; the
cedural right to which the law entitles him.”                minimum and maximum sentences
Id. In evaluating such claims, we indulge in “a              possible under the relevant statute or
strong presumption” that counsel’s                           sentencing guidelines, the relative
representation fell “within the wide range of                placement of the sentence actually
reasonable professional competence, or that,                 imposed within the range, and the
under the circumstances, the challenged action               various relevant miti gating and
‘might be considered sound trial strategy.’”                 aggravating factors that were properly
Bridge v. Lynaugh, 838 F.2d 770, 773 (5th                    considered by the sentencer.
Cir. 1988) (citation omitted).         “A fair
assessment of attorney performance requires               Id. at 88-89 (footnote omitted).
that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct              Johnson’s claim is that counsel failed to put
                                                          forward any effort with regard to the re-
                                                          quested appeal. Such a complete lack of ef-
   4
     Johnson’s allegations are not precise as to
                                                          fort, if true, is likely to result in Washington
whether he challenges that he was not counseled or,       prejudice. The failure of counsel to perfect an
instead, that his plea was involuntary. This is an        appeal on request, or failure to advise the cli-
issue the district court should explore on remand.        ent of his right to appeal and the time limits
Ultimately to succeed, Johnson will have to prove         involved may constitute ineffective assistance,
that his guilty plea was flawed, not just that he         entitles the defendant to an out-of-time appeal.
requested an appeal.

                                                      3
See United States v. Gipson, 985 F.2d 212,                 direct appeal6 triggered an obligation to hold
215 (5th Cir. 1993). In Roe v. Flores-Ortega,              an evidentiary hearing. See Mack v. Smith,
528 U.S. 470, ___, ___-___, 120 S. Ct. 1029,               659 F.2d 23 (Former 5th Cir. Oct. 1981); see
1035, 1038-40 (2000), the Court addressed an               also Chapman v. United States, 469 F.2d 634,
ineffective assistance of counsel claim in the             636 (5th Cir. 1972). We remand for such a
context Johnson presents here, holding that                hearing, which is not to be an additional forum
Washington provides the proper framework                   for Johnson to raise any issues he has managed
for evaluating a claim that counsel was                    to waive.7 The sole question on remand is
ineffective for failing to file a notice of appeal.5       whether Johnson requested that his attorney
                                                           file a direct appeal challenging the guilty plea
   The district court determined that Johnson              and, if so, whether the attorney failed to file
had waived his right to appeal, and, therefore,            the appeal.
counsel was not ineffective for failing to file an
appeal. This was error. The plain language of                 The judgment of conviction is VACATED
the plea shows that Johnson only waived the                and REMANDED for further proceedings.
right to appeal his sentence; it does not men-
tion a wavier of the right to appeal the
conviction based on his guilty plea. If
Johnson’s allegation is true that he asked
counsel to file a direct appeal of the
conviction, and counsel did not do so,
prejudice is presumed. See Penson, 488 U.S.
at 88-89.

    The record does not shed any light on John-
son’s alleged request that counsel file a direct
appeal or on any response or action on the part
of his attorney.      Nor does the record                     6
                                                                Johnson alleges that after the sentencing hear-
conclusively show that Johnson is not entitled             ing, he asked counsel to file a direct appeal, and
to relief. See United States v. Bartholomew,               counsel agreed to do so and stated that the matter
974 F.2d 39, 41 (5th Cir. 1992). Johnson ’s                would be discussed later. Johnson also alleges that
allegation that he asked his counsel to file a             he attempted to contact his attorney during the ten
                                                           days after sentencing but was unsuccessful,
                                                           learning only seven months later that an appeal had
                                                           not been filed. He argues that if he had known that
                                                           counsel had not file a direct appeal, he would have
                                                           filed a pro se notice of appeal.
   5
        Flores-Ortega alters this court’s
                                                              7
jurisprudence, which had provided that a                        The district court should be impatient with any
Washington analysis is not to be performed where           attempt to discuss (1) the breach of the plea
there has been actual or constructive complete             agreement, (2) any challenge to the sentence,
denial of any assistance of appellate counsel. See,        (3) the use of the uncounseled misdemeanor, or (4)
e.g., Sharp v. Puckett, 930 F.2d 450, 451-52 (5th          an ineffective assistance of counsel claim relating
Cir. 1991) (citing Penson v. Ohio, 488 U.S. 75             to the waiver of Johnson’s right to appeal his
(1988)); Gipson, 985 F.2d at 215 (§ 2255 case).            sentence.

                                                       4
