     Case: 09-40135     Document: 00511255700          Page: 1    Date Filed: 10/06/2010




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

                                                  FILED
                                                                           October 6, 2010

                                       No. 09-40135                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

GARY DON FRANKS

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:05-CR-499
                               USDC No. 4:03-CR-84


Before BARKSDALE, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Proceeding in forma pauperis and pro se, and pursuant to three issues
certified for appeal by our court, Gary Don Franks appeals the denial of his 28
U.S.C. § 2255 motion, challenging his 2004 guilty-plea conviction. (Franks’
motion not to publish this opinion is DENIED as moot; his motion to strike the
Government’s response to Franks’ not-publish motion is DENIED.)




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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      For the three certified issues, we hold: although the district court erred
in ruling that the § 2255 motion is both time-barred and barred by the appellate-
waiver provision in Franks’ plea agreement, it did not abuse its discretion by not
conducting an evidentiary hearing for Franks’ due-process claim. AFFIRMED.
                                        I.
      Pursuant to a plea agreement, Franks pleaded guilty to possession with
intent to distribute and dispense methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), and possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g). Franks was sentenced, inter alia, to 101 months’ imprisonment.
Judgment was entered on 27 July 2004.
      The next day, Franks filed a timely pro se notice of appeal. His appeal was
dismissed for want of prosecution on 22 September 2004.
      On 21 December 2005, Franks filed the § 2255 motion at issue, claiming
his Sixth Amendment right to effective assistance of counsel was violated when:
(1) the district court cut off funding for his privately-retained attorney; (2) his
counsel failed to investigate the strength of the Government’s case, thereby
precluding him from deciding intelligently whether to plead guilty or proceed to
trial; and (3) his counsel failed to move to suppress evidence obtained in
violation of his Fourth Amendment rights. In addition, Franks claimed his Fifth
Amendment right to due-process was violated when the district court denied him
appointment of counsel on direct appeal.
      The district court referred the matter to a magistrate judge for a report
and recommendation. The magistrate judge recommended: Franks’ § 2255
motion should be denied as time-barred; he should be denied equitable tolling
because he failed to establish that an unconstitutional government action
prevented him from filing a timely motion; he had waived his right to appeal;
and, in the alternative, his claims were without merit.         Additionally, the
magistrate judge recommended denial of a certificate of appealability (COA),

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even though Franks had not filed a request for a COA. Franks filed objections
to the report and recommendation.
       The   district    court   adopted   the   magistrate     judge’s   report   and
recommendation and denied Franks’ § 2255 motion. The district court ruled:
Franks’ actual-innocence claim was without merit and could not excuse the
statute of limitations; Franks’ § 2255 motion was barred by the appellate-waiver
provision in his plea agreement; Franks’ guilty plea waived all non-jurisdictional
defects except those set forth in Federal Rule of Criminal Procedure 11(a)(2);
and, Franks failed to show that he either requested the appointment of appellate
counsel or filed a § 2255 motion on 29 July 2005 (Franks asserted that a request
to proceed in forma pauperis on that date invoked jurisdiction pursuant to
§ 2255). The district court ruled, in the alternative, that the issues raised in
Franks’ § 2555 motion lacked merit.
                                           II.
       On 12 November 2009, our court denied the majority of Franks’ COA
requests (concerning the striking of his oversized objections to the magistrate
judge’s report and recommendation, the denial of his motion for partial summary
judgment, and his claims of ineffective assistance of counsel) but granted a COA
for:   whether his § 2255 motion was either time-barred or barred by the
appellate-waiver provision in his plea agreement; and whether the district court
erred in dismissing his due-process claim without conducting an evidentiary
hearing. See 28 U.S.C. § 2253.
                                           A.
       A district court’s factual findings are reviewed for clear error; it’s legal
conclusions, de novo. E.g., United States v. Edwards, 442 F.3d 258, 264 (5th Cir.
2006). The district court erred in ruling on alternative bases that the § 2255
motion was barred.



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                                       1.
      Regarding the time bar, § 2255 establishes the period for filing such
motions. 28 U.S.C. § 2255(f). The motion may be filed within one year from,
inter alia, the date the judgment of conviction became final.          28 U.S.C.
§ 2255(f)(1).
      Judgment for Franks’ criminal case was entered on 27 July 2004; he filed
a timely notice of appeal the next day. On 22 September 2004, his appeal was
dismissed for want of prosecution.
      Franks insists his conviction became final no earlier than 21 December
2004, 90 days after dismissal of his direct appeal. Because his § 2255 motion
was delivered to prison officials on 21 December 2005, Franks contends it was
timely pursuant to § 2255(f)(1).     (Franks’ § 2255 motion was filed on 27
December 2005; however, under the prison-mailbox rule, the motion was filed
on 21 December 2005, the day his motion was deposited into a legal mailbox
where he was incarcerated. E.g., Spotville v. Cain, 149 F.3d 374, 376-78 (5th
Cir. 1998).)
      The Government counters: because Franks did not raise on appeal any
substantive issues regarding either his conviction or sentence, his petition for
a writ of certiorari would have been limited to whether our court correctly
dismissed Franks’ appeal for want of prosecution. Therefore, the Government
urges, the direct appeal for Franks’ criminal conviction ended on 10 August
2004, ten days after the district court entered judgment, resulting in the
limitations period for filing the § 2255 motion expiring on 10 August 2005.
      In concluding that Franks’ § 2255 motion was time-barred, the district
court relied upon United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008).
The district court reasoned that Franks’ direct appeal became final on 10 August
2004 because his appeal was dismissed for want of prosecution, and because any
petition for certiorari would not have contested direct review of his conviction.

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      In Plascencia, defendant filed a late pro se notice of appeal, which our
court construed as a motion for an extension of time. Plascencia, 537 F.3d at
387; see F ED. R. A PP. P. 4(b)(4). Our court held: because defendant never filed
an effective notice of appeal, his judgment became final ten days after it was
entered; and any petition for writ of certiorari defendant could have filed after
dismissal of his direct appeal would not have encompassed direct review of his
conviction. Plascencia, 537 F.3d at 389. “Instead, it would have concerned only
[this court’s] ruling that the district court did not abuse its discretion by
declining to grant [the defendant] an appeal.” Id.
      On the other hand, when a federal defendant files a timely notice of
appeal, a judgment of conviction becomes final for purposes of § 2255(f)(1) on the
date of the Supreme Court’s denial of a petition for writ of certiorari. United
States v. Thomas, 203 F.3d 350, 355 (5th Cir. 2000). When such a petition has
not been filed, the judgment becomes final upon the expiration of the 90-day
period for filing such a petition. Clay v. United States, 537 U.S. 522, 532 (2003);
United States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000). And, when a
federal defendant files a timely notice of appeal, and that appeal is dismissed for
want of prosecution, a conviction becomes final upon the expiration of the time
for seeking certiorari, even when the prisoner has not filed such a petition.
Gamble, 208 F.3d at 537. A § 2255 motion is thereby deemed timely, so long as
“[i]t was filed within a year after the ninety-day period for seeking certiorari
review of his conviction as finalized in this court”. Id.
      Here, unlike defendant in Plascencia, Franks filed a timely notice of
appeal. See United States v. McWilliams, 308 F. App’x 806, 808 (5th Cir. 2009)
(noting Plascencia was not implicated because a timely notice of appeal).
Because defendants are entitled to the benefit of the additional 90-day period
even when their direct appeal is dismissed for want of prosecution, Gamble, 208



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F.3d at 536-37, Franks’ conviction became final on 21 December 2004, when the
90-day period for filing a certiorari petition expired. See Clay, 537 U.S. at 532.
                                        2.
      Concerning the bar by the appellate-waiver provision in Franks’ plea
agreement, that agreement was silent on his right to collaterally challenge his
conviction under § 2255. See United States v. McKinney, 406 F.3d 744, 746 (5th
Cir. 2005) (waiver of defendant’s right to statutory appeal must be explicit and
unambiguous); United States v. White, 307 F.3d 336, 338 (5th Cir. 2005) (plea
agreement expressly included waiver of right to challenge sentence under 28
U.S.C. § 2255). Along that line, the Government concedes that the district
court’s reading of Franks’ waiver is too broad. We need not address this issue
further. See United States v. Sadler, 2010 WL 3007909, at *1 (5th Cir. 30 July
2010); see also United States v. Merrifield, 339 F. App’x 374, 375 (5th Cir. 2009)
(holding guilty plea of Franks’ co-defendant did not bar right to collaterally
challenge conviction and sentence under § 2255).
                                       B.
      For the final issue certified, Franks maintains the district court erred by
denying his due-process claim without conducting an evidentiary hearing. He
contends: he made a sufficient showing to warrant an evidentiary hearing on his
claim that his Fifth Amendment right to due-process was violated by the district
court’s failure to grant him in forma pauperis status and appoint him counsel on
direct appeal.
      The denial of a § 2255 motion without an evidentiary hearing is reviewed
for abuse of discretion. E.g., United States v. Cervantes, 132 F.3d 1106, 1110
(5th Cir. 1998) (citing United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir.
1992)).   “A trial court abuses its discretion when its ruling is based on an
erroneous view of the law or a clearly erroneous assessment of the evidence.”



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United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005) (quoting Bocanegra
v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)).
      Rule 8 of the Rules Governing § 2255 Proceedings states: “If the [§ 2255]
motion is not dismissed, the judge must review the answer, any transcript and
records of prior proceedings, and any materials submitted . . . to determine
whether an evidentiary hearing is warranted”. See United States v. Cavitt, 550
F.3d 430, 441-42 (5th Cir. 2008) (quoting Edwards, 442 F.3d at 264). Movant is
entitled to an evidentiary hearing on an issue presented in his § 2255 motion if
he can provide “independent indicia of the likely merit of [his] allegations,
typically in the form of one or more affidavits from reliable third parties . . .”.
Cervantes, 132 F.3d at 1110 (emphasis added). “If, however, the [movant]’s
showing is inconsistent with the bulk of [his] conduct or otherwise fails to meet
[his] burden of proof in the light of other evidence in the record, an evidentiary
hearing is unnecessary.” Id. (citing United States v. Smith, 844 F.2d 203, 208
(5th Cir. 1988)).
      Franks contends he is entitled to an evidentiary hearing because: his
notice of appeal, docketed on 28 July 2004, indicated sufficiently his request for
appointed counsel during his appeal; and he submitted to the district court an
amended notice of appeal, which was mailed on 29 July 2004. In support,
Franks presents what appear to be three independent indicia supporting the
merits of his allegations: the self-serving statements contained in his § 2255
motion, which includes a copy of the alleged undocketed 29 July notice; and, the
affidavits of prisoners (Franks’ co-defendants) Ricky Joe James and Paul L.
Schlieve.
                                        1.
      Franks contends his pro se notice of appeal, docketed 28 July 2004,
presented his appointed-counsel request:



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         COMES NOW, Gary Don Franks, without any attorney of
         record and would file this Notice of Appeal, in the above
         styled and numbered cause, by means of “pro-se” until such
         time as I can be appointed counsel or can afford to hire
         counsel.
         WHEREFORE, Premises considered, the defendant
         respectfully requests this Honorable court accept this, his
         Notice of Appeal.
(Emphasis added.)
      The district court found this notice of appeal lacked a request for
appointed counsel. The notice was interpreted to include, at best, a suggestion
that Franks might request appointment if he could not afford to retain counsel.
      The district court did not abuse its discretion in ruling the notice did not
request appointment of counsel. Besides the language contained in that notice,
the district court’s determination was supported in part by: Franks’ failure to
inquire into the status of his claimed request for appointed counsel, either before
or after his direct appeal was dismissed for want of prosecution; Franks’ having
been represented by retained counsel during the earlier district court
proceedings; and, Franks’ letter to the district court on 8 July 2004, stating that
he was going to retain another attorney.
      Franks further contends the district court should have inquired into his
financial circumstances at the time he filed his pro se notice of appeal, citing
Rodriguez v. United States, 395 U.S. 327 (1969). Rodriguez held, however, that,
when counsel fails to file a requested appeal, defendant is entitled to re-
sentencing and an appeal without having to show likelihood of success. Id. at
329-30. Rodriguez did not impose a general duty on district courts to inquire
into the pro se appellant’s finances.
                                        2.
      Regarding the claimed second notice of appeal on 28 July 2004, Franks
asserts it included a request for leave to proceed in forma pauperis and for the


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appointment of counsel on his direct appeal. This notice was not docketed, and
it apparently first came to the district court’s attention as an attachment to
Franks’ § 2255 motion, filed on 27 December 2005.
      To explain the discrepancy between the first and second notices of appeal,
Franks relies on the following assertions: the district court’s claimed history of
improper filings; the Assistant United States Attorney’s (AUSA) failure to deny
“having received the copy of the Notice of Appeal that was served on her in her
official capacity”; his mailing a copy of the notice of appeal to the district judge;
and the affidavits of Schlieve and James.
      Franks’ assertion that the district court has a history of improperly
docketing his filings is unavailing. His first example, that an application to
proceed in forma pauperis was received by the district court on 29 July 2005, and
was not docketed until 27 December 2005, is unhelpful: Franks’ motion was not
filed because it was premature until he submitted his § 2255 motion. His
second example, that his “motion for Discovery of Documents Probative of the
Incarceration of Rodney Lewis Crowley” was received by the clerk on 28 August
2006 but not filed, is belied by its certificate of service dated 13 September 2006.
      Additionally, his assertions that the court was aware of his second notice
of appeal because he mailed copies to the district judge and to the AUSA are
unsubstantiated.     See Cervantes, 132 F.3d at 1110 (finding petitioner’s
conclusional allegations insufficient to merit request for evidentiary hearing).
      The Schlieve and James affidavits are unhelpful because they come from
unreliable parties. See id. Schlieve’s affidavit is insufficient because it shows
he was not an eyewitness to the events in question, thereby fatal to its value as
independent indicia. See United States v. Merrill, 340 F. App’x 976, 978 (5th Cir.
2009) (citing Cervantes, 132 F.3d at 1110).
      While James’ affidavit contains an eyewitness account, it lacks requisite
specificity. See Cervantes, 132 F.3d at 1110-11. It states that Franks filed a

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notice of appeal requesting appointed counsel in July 2004; however, it does not
differentiate between Franks’ above-described first and second notices of appeal.
      Franks’ assertions are inconsistent with the bulk of his conduct otherwise:
he failed to show he attempted to obtain the relevant prior mail logs or inquire
about the status of his request for appointed counsel either before or after his
appeal was dismissed; he was able to retain counsel prior to entry of judgment;
he informed the district court that he was seeking another attorney; the volume
of his pro se filings during the period leading up to sentencing demonstrated
Franks’ proclivity to seek immediate action from the district court if a matter
was pending; the record shows Franks was silent before the district court from
22 September 2004 (when his appeal was dismissed for want of prosecution) to
29 July 2005, when the district court apparently first received his application to
proceed in forma pauperis.
      The district court’s assessment of the evidence was not clearly erroneous;
accordingly, it did not abuse its discretion in denying Franks an evidentiary
hearing on his due-process claim. Franks’ claims are inconsistent with the bulk
of his conduct, and he offers no supporting specific facts. See Davis v. Butler, 825
F.2d 892, 894 (5th Cir. 1987) (stating requirements for evidentiary hearing in
context of a § 2254 petition); United States v. Orozco-Ramirez, 211 F.3d 862, 864
n.4 (5th Cir. 2000) (noting that, because of their similarity, § 2254 proceedings
are viewed relevant to § 2255 analysis). While Franks insists an evidentiary
hearing would allow him to find facts to support his allegations (e.g., the
testimony of other affiants, the mail log from Grayson County Jail), an
evidentiary hearing is not a “fishing expedition” for him to find support to
validate his allegations. Edwards, 442 F.3d at 268 n.10 (5th Cir. 2006).
                                        III.
      Therefore, in the light of the district court’s alternative ruling on the
merits, the judgment is AFFIRMED.

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