USA v. Ryan

Filing 920070129

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT January 29, 2007 Charles R. Fulbruge III Clerk No. 06-10224 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAMES RAY RYAN, JR., Defendant-Appellant. -------------------Appeal from the United States District Court for the Northern District of Texas (1:05-CV-15) (1:04-CR-22) -------------------Before SMITH, WIENER, and OWEN, Circuit Judges. PER CURIAM:* Defendant-Appellant James Ray Ryan, federal prisoner #

32861-177, moves this court for a certificate of appealability (COA) following the district court's denial of his 28 U.S.C. § 2255 motion. In his motion, Ryan challenged the validity of his guilty

plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Ryan also asserted that his counsel was

ineffective for failing to file a notice of appeal, although he specifically requested that counsel do so.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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A COA may issue only if Ryan makes "a substantial showing of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, See 28 U.S.C. § 2253(c)(2); 484 (2000). "The COA

determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). "A petitioner

satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his

constitutional claims or that jurists could conclude the issues presented further." are adequate to deserve encouragement to proceed

Id. at 327.

With respect to his challenge to the validity of his guilty plea, Ryan has failed to meet the standard required for the issuance of a COA. as to this issue. Accordingly, Ryan's motion for a COA is DENIED Ryan has, however, made a substantial showing of

the denial of a constitutional right with respect to his claim that counsel was ineffective in failing to file a notice of appeal on his behalf. (2000). counsel See Roe v. Flores-Ortega, 528 U.S. 470, 477, 483

Because he alleges that he specifically requested that file a notice of appeal, Ryan was not required to

demonstrate that he would have presented merit worthy issues on appeal. See id. at 485. Further, Ryan's § 2255 motion was made

under penalty of perjury and was competent evidence supporting his claim. 28 U.S.C. § 1746; see Hart v. Hairston, 343 F.3d 762, 764 Because Ryan's § 2255 motion and the files 2

n.1 (5th Cir. 2003).

and records of this case do not conclusively show that he is entitled to no relief, an evidentiary hearing was required. See

United States v. Hughes, 635 F.2d 449, 451 (5th Cir. 1981). Accordingly, it is ORDERED that Ryan's motion for a COA is GRANTED solely on the ineffective-assistance-of-counsel issue. The

judgment is VACATED and the case REMANDED for further development in the district court.

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