     Case: 12-31204       Document: 00512477706         Page: 1     Date Filed: 12/19/2013




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

                                                                            FILED
                                                                        December 19, 2013
                                       No. 12-31204
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JAMES COOLEY, also known as Boo-Boo,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CV-1583


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       James Cooley has applied for a certificate of appealability (COA) to appeal
the district court’s dismissal of his 28 U.S.C. § 2255 motion challenging his
guilty plea conviction and 235-month prison sentence for conspiracy to distribute
and possess with intent to distribute 500 grams or more of a mixture or
substance containing a detectable amount of cocaine. Cooley asserts that he is
entitled to a COA on his claim of ineffective assistance of appellate counsel.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-31204

      We dismissed Cooley’s direct appeal of his sentence for failure to prosecute
based on errors that appellate counsel acknowledged were his alone and in no
way caused by Cooley himself. The district court believed it could award no
relief on the claim because the clerk of this court had denied Cooley’s motions to
reinstate the direct appeal. The district court denied Cooley a COA.
      A COA will issue if Cooley makes “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). If the district court denies relief on procedural grounds, a COA
will not issue unless the applicant shows “that jurists of reason would find it
debatable whether the [motion] states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). If the district court denies relief on the merits, a COA will
not issue unless the applicant shows “that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Id.
      Obtaining relief based on a claim of ineffective counsel requires a showing
that counsel’s performance was deficient and that the deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney
performs deficiently if his actions fall “below an objective standard of
reasonableness.” Id. at 688. “The general rule announced in Strickland . . . is
modified when the complained of performance results in the actual or
constructive denial of any assistance of appellate counsel.” Harris v. Day, 226
F.3d 361, 364 (5th Cir. 2000).       “In such a case, the petitioner need not
demonstrate the typical Strickland-type prejudice, because prejudice is
presumed.” Id. This presumption applies even “in cases involving appeal
waivers that also include[ ] a waiver of collateral review.” United States v. Tapp,
491 F.3d 263, 265 (5th Cir. 2007).
      Granting an out-of-time appeal is a permissible remedy if counsel has
failed in his duty to perfect a requested appeal. United States v. West, 240 F.3d

                                         2
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                                  No. 12-31204

456, 459 (5th Cir. 2001). Under this judicial remedy, the district court must
dismiss without prejudice a petitioner’s § 2255 claim of ineffective assistance of
appellate counsel and reinstate the judgment of conviction, which will restart
the time for appeal under Federal Rule of Appellate Procedure 4(b)(1)(A). Id. at
459-60.
      The record is clear that, through no fault of his own, an appellate brief was
never filed in the appeal Cooley requested, and he was thus denied the effective
assistance of appellate counsel and need not show prejudice. See Harris, 226
F.3d at 364-65. Accordingly, we grant a COA in connection with Cooley’s claim
of ineffective assistance of appellate counsel, VACATE the district court’s ruling
on that claim, and REMAND with instructions to dismiss without prejudice
Cooley’s § 2255 claim of ineffective assistance of appellate counsel, reinstate the
criminal judgment on the docket, and grant an out-of-time appeal.




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