USA v. Walker

Filing 920090508

Opinion

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
May 8, 2009 No. 07-10652 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA Plaintiff-Appellee v. JAMES DARRELL WALKER Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 5:07-CV-006

Before WIENER, STEWART and CLEMENT, Circuit Judges. PER CURIAM:* Petitioner James Darrell Walker ("Walker") sought a Certificate of Appealability ("COA") to appeal the district court's denial of his habeas corpus petition pursuant to 28 U.S.C. § 2255. Walker contended that he received ineffective assistance of counsel ("IAC") because his attorney failed to file a direct appeal on his behalf after he, Walker, asked the lawyer to do so. After granting Walker a COA on the IAC claim, narrowly construed as the single question whether Walker's lawyer failed to file the appeal, we remanded the case
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-10652 to the district court for the limited purpose of conducting an evidentiary hearing into whether Walker had in fact requested that his attorney file a direct appeal, and we retained jurisdiction. The district court concluded on remand that (1) on the advice of his counsel, Walker decided not to file a direct appeal,1 and (2) Walker signed a document attesting to that fact. As this finding squarely forecloses Walker's IAC claim, his petition for habeas corpus is DENIED.

Walker pleaded guilty to drug charges, which plea agreement included a waiver of appeal. Apparently, Walker's attorney told him that attempting to appeal following such a waiver would be very difficult and advised against it. Walker then agreed.

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