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

                                                 FILED
                                                                         November 17, 2009
                                     No. 08-30332
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

SHAWN PHILLIP HARGER,

                                                   Defendant–Appellant.


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 2:05-CR-20186-1
                             USDC No. 2:07-CV-1835


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Shawn Phillip Harger appeals the denial of his motion under
28 U.S.C. § 2255 challenging his conviction and sentence after pleading guilty
to conspiring to distribute ecstasy and cocaine and possessing a firearm in
furtherance of a drug-trafficking crime. In the § 2255 motion, Harger claimed,
among other things, that his counsel provided constitutionally ineffective
assistance by failing to file a notice of appeal as Harger instructed. Without


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-30332

conducting an evidentiary hearing, the district court rejected Harger’s claim,
finding that he presented no evidence that he instructed his lawyer to file an
appeal and that the Government’s evidence—correspondence between Harger
and his attorney and between the attorney and Harger’s mother—established
that Harger did not make this request. We granted a certificate of appealability
on the issues of whether Harger’s counsel was ineffective for failing to file a
notice of appeal and whether the district court should have held an evidentiary
hearing.
      If a defendant requests that counsel file a notice of appeal, counsel’s failure
to do so constitutes ineffective assistance even without a showing that the appeal
would be meritorious. See Roe v. Flores-Ortega, 528 U.S. 470, 477, 486 (2000);
cf. United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007). A district court may
deny a § 2255 motion without first holding a hearing only if the evidence
conclusively shows that the prisoner is not entitled to relief. United States v.
Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).
      The court clearly erred when it found that Harger provided no evidence
that he instructed his attorney to file an appeal because, in the § 2255 motion,
Harger declared under penalty of perjury that he explicitly instructed his lawyer
to do so. See 28 U.S.C. § 1746; Hart v. Hairston, 343 F.3d 762, 764 n.1 (5th Cir.
2003) (explaining that a declaration made under penalty of perjury is competent
evidence). Furthermore, the evidence submitted by the Government does not
contradict Harger’s sworn statement, as the correspondence is silent on the issue
of whether Harger asked his attorney to appeal his conviction and sentence.
Thus, the record fails to conclusively establish that Harger did not instruct his
lawyer to file a notice of appeal, and the district court abused its discretion in
failing to hold an evidentiary hearing. See United State v. Cervantes, 132 F.3d
1106, 1110 (5th Cir. 1998).




                                         2
                                      No. 08-30332

      The denial of Harger’s § 2255 motion is VACATED and the case is
REMANDED for an evidentiary hearing on Harger’s claim that he instructed
counsel to file a notice of appeal.




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