                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-2607
                         ___________________________

                                   Cesar D. Franco

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                              United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                 ____________

                              Submitted: May 15, 2014
                               Filed: August 8, 2014
                                  ____________

Before RILEY, Chief Judge, BEAM and SMITH, Circuit Judges.
                              ____________

SMITH, Circuit Judge.

       Cesar Franco pleaded guilty to conspiracy to distribute 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b). The district court
sentenced Franco to 120 months' imprisonment. No direct appeal followed. Franco
filed a 28 U.S.C. § 2255(b) motion to vacate his sentence, alleging that his attorney,
Jerry Hug, failed to file a requested notice of appeal. The district court denied the
motion without an evidentiary hearing. The court credited Hug's affidavit testimony
that he did not recall Franco ever requesting an appeal, concluding that it was "more
credible" than Franco's assertion that he asked Hug to file an appeal. We reverse and
remand for an evidentiary hearing.

                                    I. Background
       Franco pleaded guilty to conspiring to distribute methamphetamine, for which
he was sentenced to the statutory mandatory minimum 120 months' imprisonment. No
appeal followed. According to Franco, he "unequivocally requested" that Hug file a
notice of appeal after sentencing. It is undisputed that Hug never filed an appeal on
Franco's behalf. Franco first discovered that Hug did not file an appeal after writing
to Michael Gans, the Clerk of Court for the Eighth Circuit, about the status of his
appeal. Gans's office informed Franco that his case had not been appealed. In July
2012, Franco filed a § 2255 motion to vacate his sentence in the district court on the
ground that Hug's failure to file a notice of appeal, as requested, amounted to
ineffective assistance of counsel.

        In his § 2255 proceeding, Franco filed an affidavit stating that he asked Hug
to file an appeal. Hug filed an affidavit in response, stating that he did not recall being
asked to file an appeal in Franco's case and that he ordinarily files an appeal when he
is asked to do so. Without holding an evidentiary hearing, the district court denied
Franco's motion, finding "Hug's version of facts more credible." According to the
court, "[t]he defendant pleaded guilty voluntarily, and the court informed him of the
rights he surrendered by doing so . . . . The defendant had little reason to appeal as he
had nothing to gain and had given up certain rights, including the right to challenge
the lawfulness of the evidence against him." On that basis, "the court credit[ed]
[Hug's] story, and discredit[ed] [Franco's]."




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                                    II. Discussion
      On appeal, Franco contends that the district court erred by making a credibility
finding based on only an affidavit battle, without holding an evidentiary hearing. The
government avers that Hug's affidavit "provides specific details as to when he spoke
to Franco about Franco's right to appeal and the merits of filing an appeal" and that
he "further averred that when a client requests him to file an appeal, he does so,
regardless of whether the appeal has any merits." The government characterizes
Franco's affidavit as providing "only self-serving, self-contradicting statements." On
that basis, the government asserts that the court need not conduct an evidentiary
hearing.

       "A petitioner is entitled to an evidentiary hearing on a section 2255 motion
unless 'the motion and the files and the records of the case conclusively show that
[he] is entitled to no relief.'" Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th
Cir. 2008) (quoting 28 U.S.C. § 2255(b)). "No hearing is required, however, where
the claim is inadequate on its face or if the record affirmatively refutes the factual
assertions upon which it is based." Id. (quotation and citation omitted). "We review
the district court's decision not to hold an evidentiary hearing for an abuse of
discretion." Id. (citation omitted).

       "Where petitioner's allegations, if true, amount to ineffective assistance of
counsel, a hearing must be held unless the record 'affirmatively refutes the factual
assertions upon which [the claim] is based.'" Watson v. United States, 493 F.3d 960,
964 (8th Cir. 2007) (quoting Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir.
1994)). It is undisputed that Hug did not file a notice of appeal on Franco's behalf. If
Franco directed Hug to file an appeal, then Hug's failure to appeal amounts to
ineffective assistance of counsel. See Barger v. United States, 204 F.3d 1180, 1182
(8th Cir. 2000) ("[A]n attorney's failure to file a notice of appeal after being instructed
to do so by his client constitutes ineffective assistance entitling petitioner to section
2255 relief, no inquiry into prejudice or likely success on appeal being necessary.").

                                           -3-
        In Watson, a criminal defendant pleaded guilty to the charges against him and
waived some—but not all—rights to appeal. Watson, 493 F.3d at 961–62. Some
months after sentencing, he complained via a § 2255 petition that he had instructed
his attorneys to file a notice of appeal and that they had failed to do so. Id. at 962.
While Watson's factual assertion was unchallenged, the district court characterized
his claim as a "'bare assertion' which was insufficient to entitle him to relief or to a
further inquiry." Id. We reversed, holding that "[a]lthough the district court was not
required to credit Watson's assertion, see Barger, 204 F.3d at 1182, it was required
to hold a hearing before making factual determinations about Watson's credibility."
Id. at 964.

       In Koskela v. United States, the defendant complained that trial counsel did not
present an alibi defense or subpoena witnesses who would have supported that
defense, despite the defendant's instructions to do so. 235 F.3d 1148, 1149 (8th Cir.
2001). The defendant submitted an affidavit stating his claim, as well as affidavits of
the proposed witnesses who would have supported his alibi. Id. The government
responded with an affidavit from his trial counsel, averring that the defendant had
told him a different version of events and had never mentioned the names of potential
alibi witnesses. Id. "The District Court concluded, without an evidentiary hearing,
that the [defendant's] affidavits lacked credibility in the face of the government's
pleadings and affidavits, and in any event did not undermine the Court's confidence
in the trial outcome." Id. We reversed, holding that "[b]ecause the record before the
District Court contained sharply conflicting evidence, the Court abused its discretion
in finding a hearing unnecessary." Id.

       In this case, neither Hug's nor Franco's affidavit is, on its face, more credible
than the other. The government contends that Hug's affidavit "provides specific
details as to when [Hug] spoke to Franco about Franco's right to appeal and the merits
of filing an appeal" and implies that Franco's affidavit does not. Contrary to the
government's characterization, the two affidavits contain similar specificity as to

                                          -4-
when these alleged conversations took place (or did not take place). Hug averred that
"[a]fter the sentencing hearing and after Mr. Franco had been informed of his right
to appeal, [Hug] spoke with Mr. Franco about the merits of an appeal." Franco
averred that "after sentencing, [the court] apprised [Franco] of [Franco's] right to
appeal. [Franco] unequivocally requested defense attorney, Jerry M. Hug, to timely
'notice an appeal,'" and later stated that "Mr. Hug, never at anytime consulted with
[Franco] about the advantages or disadvantages of an appeal to make a reasonable
effort to discover [Franco's] wishes on appeal."1

       Hug's affidavit states that he "do[es] not recall" Franco requesting an appeal,
that he had no written request in the case file, and that he "do[es] not recall ever
receiving one." Hug further stated that he files an appeal when a client requests that
he do so, concluding that "[h]ad Mr. Franco, at any time, requested that I file an
appeal in his case, I would have done so." Hug thus simply asserted that he ordinarily
does what a constitutionally competent attorney would do. Hug's affidavit could be
completely true as to what he ordinarily does, and yet still not entirely refute Franco's
claim. Hug's inability to recall having been asked to file an appeal and his typical
practice do not indisputably prove that Franco did not ask him to file an appeal in this
particular case. Thus, Hug's affidavit is insufficient to "affirmatively refute[ ] the
factual assertions upon which [Franco's claim] is based." See Watson, 493 F.3d at
964.

      Here, the district court received conflicting affidavits and announced that one
was more credible than the other. On this record, making a factual determination
based on the relative credibility of Hug and Franco without the benefit of an
evidentiary hearing was an abuse of discretion.


      1
       The government characterizes these statements as "self-contradictory." We
disagree. It is certainly plausible that a defendant would request an appeal without his
attorney counseling him about the merits of an appeal.

                                          -5-
                                  III. Conclusion
      We vacate the order of the district court and remand the case for an evidentiary
hearing on whether Franco requested that Hug file an appeal.
                      ______________________________




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