USA v. Fernando Valdez, Jr.

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USA v. Fernando Valdez, Jr.

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Case: 10-50259

Document: 00511207566

Page: 1

Date Filed: 08/18/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50259 S u m m a r y Calendar August 18, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e , v. F E R N A N D O VALDEZ, JR., D e fe n d a n t -A p p e lla n t .

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 6:10-CV-28

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* F e r n a n d o Valdez, Jr., federal prisoner # 29537-280, moves for a certificate o f appealability (COA) to appeal the district court's denial of his 28 U.S.C. § 2255 m o t io n . Valdez is serving a 252-month sentence following his guilty plea to p o s s e s s io n with intent to distribute at least 500 grams of methamphetamine and p o s s e s s io n of a firearm during the commission of a drug trafficking crime. As p a r t of his plea agreement, Valdez waived the right to appeal his sentence either d ir e c t ly or collaterally.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 10-50259

Document: 00511207566 Page: 2 No. 10-50259

Date Filed: 08/18/2010

I n his § 2255 motion, Valdez argued that trial counsel rendered ineffective a s s is t a n c e by failing to file a notice of appeal as instructed. The failure to file a r e q u e s te d notice of appeal is ineffective assistance of counsel, even without a s h o w in g that the appeal would have merit. See Roe v. Flores-Ortega, 528 U.S. 4 7 0 , 477, 483-86 (2000). Valdez has made a substantial showing of the denial of a constitutional r ig h t . See 28 U.S.C. § 2253(c)(2); United States v. Tapp, 491 F.3d 263, 266 (5th C i r . 2007). The record does not conclusively show that Valdez did not ask c o u n s e l to file a notice of appeal, making an evidentiary hearing on that issue n e c e s s a r y . See Tapp, 491 F.3d at 266. A COA is granted, the district court's ju d g m e n t is vacated, and the case is remanded for further development on that is s u e . Valdez's motion to proceed in forma pauperis (IFP) is granted. COA AND IFP GRANTED; VACATED AND REMANDED.

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