     Case: 10-50259     Document: 00511207566          Page: 1    Date Filed: 08/18/2010




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

                                                 FILED
                                                                           August 18, 2010
                                     No. 10-50259
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

v.

FERNANDO VALDEZ, JR.,

                                                   Defendant-Appellant.


                    Appeal from the United States District Court
                         for the Western District of Texas
                               USDC No. 6:10-CV-28


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Fernando Valdez, Jr., federal prisoner # 29537-280, moves for a certificate
of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2255
motion. Valdez is serving a 252-month sentence following his guilty plea to
possession with intent to distribute at least 500 grams of methamphetamine and
possession of a firearm during the commission of a drug trafficking crime. As
part of his plea agreement, Valdez waived the right to appeal his sentence either
directly or collaterally.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 10-50259    Document: 00511207566 Page: 2         Date Filed: 08/18/2010
                                 No. 10-50259

      In his § 2255 motion, Valdez argued that 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 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).
      Valdez has made a substantial showing of the denial of a constitutional
right. See 28 U.S.C. § 2253(c)(2); United States v. Tapp, 491 F.3d 263, 266 (5th
Cir. 2007). The record does not conclusively show that Valdez did not ask
counsel to file a notice of appeal, making an evidentiary hearing on that issue
necessary. See Tapp, 491 F.3d at 266. A COA is granted, the district court’s
judgment is vacated, and the case is remanded for further development on that
issue. Valdez’s motion to proceed in forma pauperis (IFP) is granted.
      COA AND IFP GRANTED; VACATED AND REMANDED.




                                         2
