     Case: 13-31102       Document: 00512895999         Page: 1     Date Filed: 01/09/2015




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


                                       No. 13-31102
                                                                                    FILED
                                                                              January 9, 2015
                                                                               Lyle W. Cayce
YANCY BRANCH,                                                                       Clerk

                                                  Petitioner–Appellant,
v.

STEVE RADAR, Warden,


                                                  Respondent–Appellee.




                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:12-CV-2542


Before PRADO, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
           Branch appeals the district court’s denial of his petition for a writ of
habeas corpus. We previously granted a Certificate of Appealibility (COA) on
two issues arising from his claim of ineffective assistance of counsel for failure
to file an appeal following his guilty plea. Because the district court was
correct in its decision to deny habeas relief, we AFFIRM.




       * Pursuant to Fifth Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in Fifth
Cir. R. 47.5.4.
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                                    No. 13-31102
                                         I.
      In May 2011, Yancy Branch pleaded guilty to a single count of
manslaughter and was sentenced to thirty years’ imprisonment. As part of the
plea agreement, Branch and his counsel signed a “Waiver of Constitutional
Rights,” acknowledging that Branch was aware of and was waiving various
rights, including his right to “appeal any verdict of guilty that might be
returned against [him] at trial.”
      In August 2011, Branch filed an application for state habeas relief
seeking an out-of-time appeal. He asserted that his counsel failed to notify him
of the right to appeal, failed to file a requested appeal, was ineffective on
various other grounds, and that his sentence was excessive. While Branch’s
application was filed pro se, and did not thoroughly articulate the alleged
violations, it is sufficiently clear that he alleged a violation of due process and
ineffective assistance of counsel. The state habeas petition itself was sworn
and notarized, but the allegation that he requested that counsel file an appeal
was not in the actual state habeas petition. Rather, the attached memorandum
in support, which is not sworn, states that “counsel failed to file an Appeal as
per petitioner’s request,” and that “counsel failed to notify him of the right to
appeal, whereas, the attorney was at fault in failing to file or perfect a timely
appeal.” The state trial court denied relief in a short order stating that it
“reviewed [Branch’s] application for post conviction relief along with the record
in this case and after considering same [Branch’s] application for post-
conviction relief is denied. The allegations raised by [Branch] are without
merit as he failed to provide evidence to support them.”
      On January 28, 2012, the state appellate court denied Branch’s
application for a supervisory writ, concluding that there was “no error in the
judgment of the district court denying [Branch’s] application for post conviction
relief. The record shows that he entered an unqualified guilty plea and that
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                                 No. 13-31102
his sentence was part of his plea agreement with the State. As such, [Branch]
has waived his right to an appeal.” The Louisiana Supreme Court denied writs
without explanation.
      Branch filed a timely 28 U.S.C. § 2254 application. He argued that, as
submitted in his state application for habeas relief, he received ineffective
assistance of counsel because his counsel failed to file a requested appeal. The
magistrate judge, in his report and recommendations, determined that
Branch’s assertion that he had requested that his counsel file an appeal was
unsupported and conclusory. The magistrate judge also concluded that even if
Branch could show that his counsel failed to file a requested appeal, he could
not demonstrate prejudice in light of his written waiver. The district court
adopted the magistrate judge’s report and recommendations and denied a
COA. This court granted a COA on two issues: (1) whether the district court
erred by denying relief based on a finding that Branch failed to present any
evidence showing he had requested that counsel file an appeal and finding that
Branch failed to show prejudice because of the waiver of appeal provision; and
(2) whether district court erred in failing to hold an evidentiary hearing.
                                       II.
      On habeas review, this court reviews the district court’s findings of fact
for clear error and its legal conclusions de novo. Summers v. Dretke, 431 F.3d
861, 868 (5th Cir. 2005). Under the Antiterrorism and Effective Death Penalty
Act (AEDPA), federal courts must defer to a state habeas court’s determination
of the merits of a prisoner’s claim unless the state court decision “was contrary
to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States” or “was based on
an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2). “[A] state prisoner
must show that the state court’s ruling on the claim being presented in federal
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                                  No. 13-31102
court was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).
      The issue of ineffective assistance of counsel is a mixed question of law
and fact. Woodfox v. Cain, 609 F.3d 774, 789 (5th Cir. 2009). Because we apply
the standard of § 2254(d)(1) to these questions, we will defer to the state court’s
determination of the merits of a prisoner’s claim unless the state court decision
“was contrary to, or involved an unreasonable application of, clearly
established Federal Law, as determined by the Supreme Court of the United
States.” § 2254(d)(1).
                                       III.
      Ineffective assistance of counsel claims are analyzed under the two-
prong test of Strickland v. Washington, 466 U.S. 668 (1984). To satisfy the
Strickland standard, Branch must show: (1) that his counsel’s performance
was deficient; and (2) that he was prejudiced by this deficiency. Strickland,
466 U.S. at 687. For the reasons that follow, we hold that Branch has failed to
satisfy the first prong of Strickland to warrant relief under the highly
deferential AEDPA standard of review. We need not address the second prong.
      Branch’s pro se habeas petition filed in the district court asserts
ineffective assistance of counsel claims related to his request that counsel file
an appeal and counsel’s failure to do so. However, the petition does not clearly
articulate the specific constitutional argument. A failure to file an appeal
when instructed to do so can satisfy the first prong of Strickland. See Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000) (“[A] lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts in a manner that
is professionally unreasonable.”). In support of his federal habeas claim that
he requested counsel to file an appeal, Branch relies only his prior allegations
in his state habeas memorandum. The state trial court, on habeas review,
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                                       No. 13-31102
found that “the allegations raised by [Branch] are without merit as he failed to
provide evidence to support them.” Though none of the state courts provides
an analysis of the ineffective assistance of counsel issues, the district court
reviewed the state courts’ decisions to determine if they were contrary to any
federal law regarding ineffective assistance of counsel.
       Branch argues that his statement alone is sufficient evidence that he
requested his counsel to file an appeal. In support, he relies chiefly upon Jones
v. Scott, 71 F.3d 878 (5th Cir. 1995). 1 In Jones, which was decided pre-AEDPA,
this court held that a defendant’s sworn statement that he asked his counsel
to appeal his revocation of probation, and counsel failed to do so, was sufficient
to warrant habeas relief. Id. Here, Branch provides even less that what was
held sufficient in Jones.
       Post-AEDPA, in reviewing questions of law or mixed questions of law
and fact, we will only disturb the conclusions of the state habeas court if it
acted contrary to clearly established federal law. § 2254(d)(1). 2 In Jones,
which was decided pre-AEDPA, this court offered no deference or “presumption
of correctness” to the state court’s findings. Jones, 71 F.3d at *2. Here, in
contrast, “[t]he standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is doubly so.”



       1 This court also relied upon Jones in granting a COA on this issue. As the grant of
the COA indicates, this is a question upon which reasonable jurists could disagree. On the
merits, we cannot conclude that the state court’s decision that Branch failed to provide
sufficient evidence that he requested that counsel file an appeal was “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” § 2254(d)(1).

       228 U.S.C. § 2254(d)(2), which permits federal courts to grant habeas relief where the
state court made an “unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” was not raised by Branch. Even if it had been
raised, we cannot say that the state court was objectively unreasonable in concluding that
Branch’s bare-bones allegations were insufficient to demonstrate that he actually requested
that counsel file an appeal.
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                                       No. 13-31102
Harrington, 131 S. Ct. at 788 (citations and internal quotation marks omitted).
We thus accord great deference to the state court. “When § 2254(d) applies,
the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id. Under this deferential standard of review, we hold
that the state court’s conclusion did not contradict clearly established federal
law that would establish that Branch’s counsel’s performance was deficient.
        In his federal habeas petition, Branch states that “[he] alleged in the
original application for post conviction relief that he requested an appeal
through his attorney, but the attorney failed to pursue the appeal.” However,
the sworn and notarized state habeas petition does not contain these claims.
Rather, the attached memorandum in support states that “counsel failed to file
an Appeal as per petitioner’s request,” and that “counsel failed to notify him of
the right to appeal, whereas, the attorney was at fault in failing to file or
perfect a timely appeal.” Branch provided no details, no elaboration, and no
corroboration. He has not provided an affidavit or any other evidence that he
requested that counsel file an appeal.              In addition, Branch affirmatively
waived his right to appeal through his plea agreement, which included his
signed “Waiver of Constitutional Rights,” waiving the right to appeal and
making his claim less credible. 3 On these facts, we cannot say that the state
habeas court’s decision was unreasonable in light of clearly established federal
law.


        3 Other cases that hold that the defendant provided sufficient evidence that he
requested counsel file an appeal have contained outside evidence in the record supporting
the defendant’s claim or, at the least, no evidence inconsistent with the defendant’s assertion.
See, e.g., Flores-Ortega, 528 U.S. at 474 (counsel’s notes included note to “bring appeal
papers”); United States v. Tapp, 491 F.3d at 264 (counsel actually filed appeal one day late);
United States v. Reed, 719 F.3d 369, 374 (5th Cir. 2013) (nothing in the record contradicted
defendant’s assertion); United States v. Onwuasoanya, 180 F.3d 261, *2 (5th Cir. 1999)
(“[T]here is nothing in the record inconsistent with [defendant’s] allegation”).
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                                  No. 13-31102


                                        IV.
      We also granted a COA on the issue of whether the district court erred
in failing to conduct an evidentiary hearing. However, Branch completely
failed to brief the issue. “Failing to brief an issue on appeal constitutes waiver.”
Lara v. Johnson, 141 F.3d 239, 242 n.3 (5th Cir. 1998). Because Branch did
not brief the evidentiary hearing issue, it is waived.
                                        V.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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