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

                                                                  FILED
                                                                 March 24, 2008

                                No. 05-50821                 Charles R. Fulbruge III
                              Summary Calendar                       Clerk


UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JUAN CHAVEZ, JR

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 6:04-CV-376
                           USDC No. 6:03-CR-82-1


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*
      Juan Chavez, Jr., federal prisoner #35545-180, appeals the district court’s
denial of his 28 U.S.C. § 2255 motion challenging his guilty-plea conviction and
sentence for possession with the intent to distribute cocaine. As part of his plea
agreement, Chavez waived his right to direct appeal and collateral review of his




      *
      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should not be published and is not precedent except under the limited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. 05-50821

sentence, reserving the right to assert constitutional violations based on
ineffective assistance of counsel or prosecutorial misconduct.
      Chavez argues that his trial counsel rendered ineffective assistance by
failing to file a notice of appeal as instructed. The failure to file a requested
notice of appeal is per se ineffective assistance of counsel, even without a
showing that the appeal would have merit. See Roe v. Flores-Ortega, 528 U.S.
470, 477, 483-86 (2000). In United States v. Tapp, 491 F.3d 263, 266 (5th Cir.
2007), we held that the rule of Flores-Ortega applies even where a defendant has
waived his right to direct appeal and collateral review. In such circumstances,
if the defendant is able to demonstrate by a preponderance of the evidence that
he requested an appeal, prejudice will be presumed and the defendant will be
entitled to file an out-of-time appeal, regardless of whether he is able to identify
any arguably meritorious grounds for appeal that would not be precluded by the
terms of his appeal waiver. Id. Because the record in the instant case does not
conclusively show whether Chavez requested that counsel file an appeal, the
judgment of the district court is vacated and the matter is remanded for an
evidentiary hearing in accordance with Tapp. Chavez’s motions for appointment
of counsel and to supplement the record are denied as unnecessary.
      VACATED AND REMANDED; MOTIONS DENIED.




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