* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-30744

USDC No. CA-94-665

__________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

versus

RALPH BERGERON,

 Defendant-Appellant.

---------------------

Appeal from the United States District Court

for the Eastern District of Louisiana

---------------------

December 7, 1995

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

Ralph Bergeron argues on appeal that he was denied his right

to a direct appeal from his conviction and sentence. He contends

that, although he informed his counsel that he wished to appeal,

his counsel refused to file a notice of appeal.

A criminal defendant has a constitutional right to effective

assistance of counsel in his first appeal as of right. See

Evitts v. Lucey, 469 U.S. 387, 393-95 (1985). The failure of
No. 95-30744

-2-

counsel to perfect an appeal upon request of his client may

constitute ineffective assistance of counsel. See United States

v. Gipson, 985 F.2d 212, 215 (5th Cir. 1993). The standard

Strickland v. Washington ineffective-assistance-of-counsel

analysis is not performed when there has been actual or

constructive complete denial of any assistance of appellate

counsel. Sharp v. Puckett, 930 F.2d 450, 451-52 (5th Cir. 1991)

(citing Penson v. Ohio, 488 U.S. 75 (1988)). 

"In the context of the loss of appellate rights, prejudice

occurs where a defendant relies upon his attorney's

unprofessional errors, resulting in the denial of his right to

appeal." Gipson, 985 F.2d at 215. "If a petitioner can prove

that the ineffective assistance of counsel denied him the right

to appeal, then he need not further establish--as a prerequisite

to habeas relief--that he had some chance of success on appeal." 

Id. In such cases, prejudice is presumed and neither the

Strickland prejudice test nor the harmless-error test is

appropriate. Sharp, 930 F.2d at 452; but cf. Gipson, 985 F.2d at

215-17 (applying a Strickland prejudice analysis to the review of

a case in which it was established that the convicted defendant

informed his retained counsel of his desire to appeal and the

attorney failed to perfect an appeal). 

A defendant is entitled to relief if he directed his

attorney to take an appeal and counsel disregarded those

instructions. Gipson, 985 F.2d at 216-17; Norris v. Wainwright,

588 F.2d 130, 134-35 (5th Cir.), cert. denied, 444 U.S. 846

(1979). A defendant is also entitled to relief if his court-
No. 95-30744

-3-

appointed counsel failed to inform him properly of his appellate

rights, including his right to appeal, the procedure and time

limits involved, and the right to appointed counsel on appeal. 

Norris, 588 F.2d at 134-35. If the defendant has been informed

of his right to appeal and does not make known to his attorney

his desire to pursue an appeal, he has waived his right to

appeal, and a claim of ineffective assistance of counsel will not

lie. Gipson, 985 F.2d at 216.

Failure by the attorney to file a notice of appeal does not

automatically evidence a denial of a defendant's rights, however. 

Id. at 217 n.7. In United States v. Green, 882 F.2d 999 (5th

Cir. 1989), the defendant requested that his attorney file a

notice of appeal, and his attorney informed him that he "would

have to be paid more money" before filing the appeal. Id. at

1003. This court held that the defendant was not entitled to

relief in the form of an out-of-time appeal because the defendant

did not rely upon his attorney filing the notice of appeal; the

defendant knew that his attorney would not pursue an appeal

without being paid. Id. The defendant was thus not entitled to

the presumption of prejudice that attaches when the defendant has

reasonably relied upon the attorney's representations. In Green,

however, the court also relied upon the fact that the defendant

was a lawyer, that the defendant was aware of his right to

appeal, and that the defendant was aware of the need for a notice

of appeal in the court's determination that the defendant was not

prejudiced, even assuming that his attorney erred. Id.
No. 95-30744

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Bergeron alleged in his § 2255 motion that he had been

denied the right to appeal because his attorney told him that he

"would not appeal. He said that there was nothing to appeal." 

In Bergeron's objections to the magistrate judge's report and

recommendation, he alleged that his counsel never informed him of

his appellate rights. He stated that "only the Court" informed

him of his right to appeal. Bergeron further alleged that he

specifically told his attorney to appeal, and his attorney

refused, stating that he would not appeal because there was

nothing to appeal. Bergeron was informed of his right to appeal

by the district court at sentencing. The district court did not

advise Bergeron of the time limit for filing a notice of appeal.

It cannot be determined from the record whether Bergeron

instructed his counsel to file an appeal. Aside from Bergeron's

allegations, there is no other evidence in the record regarding

the circumstances surrounding the failure to file a notice of

appeal. Neither can it be determined from the record whether

Bergeron was informed by his counsel that he could file a pro se

notice of appeal within ten days of the court's judgment or that

he had a right to counsel on appeal.

Counsel is obliged to protect his client's right to appeal. 

See Chapman v. United States, 469 F.2d 634, 636 (5th Cir. 1972). 

If Bergeron did request an appeal, counsel was thus obliged to

preserve his right to appeal. See id. The record indicates that

counsel did not file a notice of appeal. Neither did counsel

seek to withdraw from representation of Bergeron. The record
No. 95-30744

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nevertheless indicates that counsel was paid $2,159.50 for

representation of Bergeron in "all proceedings."

Bergeron alleges that he told his attorney to file a notice

of appeal, but that his attorney refused. He further alleges

that his attorney never informed him of his appellate rights and

that the only information he received regarding these rights was

from the district court, informing him merely that he had a

"right to appeal." Further, unlike the defendant in Green,

Bergeron was an indigent criminal defendant with no special

knowledge of the law. See 882 F.2d at 1003. If the facts

alleged by Bergeron are true, then Bergeron received ineffective

assistance of counsel for counsel's failure to file a notice of

appeal. Bergeron has thus demonstrated that he will present a

nonfrivolous issue on appeal.

A district court may deny a § 2255 motion without a hearing

or further proceedings "only if the motion, files, and records of

the case conclusively show that the prisoner is entitled to no

relief." United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir.

1992). The record in this case does not demonstrate conclusively

that Bergeron is not entitled to relief. Although Bergeron

waited more than four years after the judgment of conviction

before he advised the courts of his allegation that he was denied

the right to appeal, "this Court's policy has been strongly in

favor of the position that a waiver will not be assumed unless

the facts clearly support such an assumption." See Chapman, 469

F.2d at 637 (defendant who waited four years after the judgment
No. 95-30744

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of conviction to allege that he had been denied his right to

appeal entitled to an evidentiary hearing).

Although Bergeron does not argue on appeal that the district

court erred by failing to conduct an evidentiary hearing on his

ineffective-assistance claim, he requested such a hearing before

the district court. Bergeron's allegation that counsel failed

either to inform him of his appellate rights or to file a notice

of appeal was sufficient to trigger the district court's

obligation to hold an evidentiary hearing. See Chapman, 469 F.2d

at 636-37. 

Bergeron's motion to proceed in forma pauperis on appeal is

GRANTED, the judgment of the district court is VACATED, and the

case is remanded for an evidentiary hearing to determine whether

"there has been an actual or constructive complete denial of any

assistance of appellate counsel." See Lombard v. Lynaugh, 868

F.2d 1475, 1480 (5th Cir. 1989); see Bartholomew, 974 F.2d at 41. 

If Bergeron successfully proves his claim on remand, the judgment

of conviction should be reinstated on the district court's docket

on the date from which the time for Bergeron to file a notice of

appeal shall run. If the district court determines that Bergeron

is not entitled to an out-of-time appeal, the court should

reinstate its judgment denying Bergeron's § 2255 motion. Then,

if Bergeron chooses to appeal, this court will review his

remaining claims.

VACATED AND REMANDED.