                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 22, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 06-40134
                         USDC No. 4:05-CV-242
                         USDC No. 4:04-CR-4-1


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

CHARLES B. WAINWRIGHT,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Charles B. Wainwright, formerly federal prisoner # 12508-

078, pleaded guilty to knowingly possessing one or more visual

depictions of minors engaging in sexually explicit conduct and

was sentenced to 33 months of imprisonment and three years of

supervised release.   Wainwright filed a 28 U.S.C. § 2255 motion,

asserting that he received ineffective assistance of counsel

because his attorney failed to file a notice of appeal following

his conviction.   The district court denied the motion and a

certificate of appealability (COA).

     *
      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this opinion should not be published and is not precedent except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. 06-40134
                                 -2-

       Wainwright moves for a COA to appeal the district court’s

denial of his § 2255 motion.    Wainwright argues that he was

denied effective assistance of counsel when his attorney failed

to consult with him regarding an appeal and whether to file an

appeal.

       To obtain a COA, Wainwright must make “a substantial showing

of the denial of a constitutional right.”    28 U.S.C.

§ 2253(c)(2).    Wainwright must show that jurists of reason could

debate the propriety of the district court’s assessment of his

constitutional claims or conclude that his claims “are adequate

to deserve encouragement to proceed further.”    Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003).

       To prevail on a claim of ineffective assistance for failure

to file notice of appeal, Wainwright must show that the failure

to file fell below an objective standard of reasonableness and

that it prejudiced him.    See Roe v. Flores-Ortega, 528 U.S. 470,

484 (2000).    An attorney’s failure to file a notice of appeal

when requested is “professionally unreasonable.”    See id. at 477.

When a defendant has not specifically expressed his wishes

regarding an appeal, the preliminary inquiry is “whether counsel

in fact consulted with the defendant about an appeal.”     Id. at

478.    Under Roe, “consult” means “advising the defendant about

the advantages and disadvantages of taking an appeal, and making

a reasonable effort to discover the defendant’s wishes.”     Id.    If

counsel consults with the defendant, then counsel acts in a
                             No. 06-40134
                                  -3-

“professionally unreasonable manner only by failing to follow the

defendant’s express instructions with respect to an appeal.”       Id.

     The parties disagree regarding whether Wainwright instructed

counsel to file an appeal.    However, counsel concedes that he did

not speak directly with Wainwright regarding an appeal following

his conviction.

     To show prejudice, Wainwright must demonstrate that there is

a reasonable probability that, but for counsel’s error, he would

have appealed.    Roe, 528 U.S. at 486.     The district court made no

findings on this issue, and the record does not demonstrate

whether Wainwright would have filed an appeal.      Thus, reasonable

jurists could debate the correctness of the district court’s

resolution of this issue.    Miller-El, 537 U.S. at 327.

     “Unless the motion and the files and records of the case

conclusively show that the petitioner is entitled to no relief”

under § 2255, a district court must hold a hearing to resolve

factual and legal issues.    See § 2255; see also United States v.

Briggs, 939 F.2d 222, 228-29 & n.19 (5th Cir. 1991).      We offer no

opinion regarding the merits of Wainwright’s ineffective

assistance claim.   We do not reach Wainwright’s Blakely v.

Washington, 542 U.S. 296 (2004) and actual innocence claims at

this time.

     Accordingly, Wainright’s motion for a COA is GRANTED on the

narrow issue of whether Wainwright was prejudiced by counsel’s

failure to consult Wainwright regarding an appeal, the judgment
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                                 -4-

of the district court is VACATED, and the case is REMANDED for an

evidentiary hearing.

     Wainwright has requested leave to proceed in forma pauperis

(IFP) on appeal.   Wainwright may proceed IFP on appeal only if he

is economically eligible and presents a nonfrivolous issue.    See

Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982) (relying on

the language of the former 28 U.S.C. § 1915.    As set forth above,

Wainwright has presented a nonfrivolous issue.    Wainwright has

not shown, however, that he is financially eligible for IFP

status.   See Adkins v. E.I. DuPont de Nemours & Co., Inc., 335

U.S. 331, 339 (1948).    Accordingly, Wainwright’s motion to

proceed IFP is DENIED.
