United States Court of Appeals,

Fifth Circuit.

No. 91-6010.

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronnie GIPSON, Defendant-Appellant.

March 8, 1993.

Appeal from the United States District Court For the Southern District of Texas.

Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant, Ronnie Gipson, was convicted of conspiracy to pass a counterfeit United States

Treasury check, passing a counterfeit Treasury check, and disp osing of Uni ted States property

without auth orit y, in violation of 18 U.S.C. §§ 371, 472, 641 (1988). He was sentenced to three

years imprisonment and one year probation. Gipson filed a pro se habeas motion to vacate, set aside

or correct sentence, pursuant to 28 U.S.C. § 2255 (1988), contending, inter alia, that he was denied

his Sixth Amendment right to effective assistance of counsel when his attorney failed to inform him

of the time limit for filing an appeal. After conducting an evidentiary hearing, the district court denied

Gipson's motion, finding that Gipson waived his right to appeal. Gipson appeals. Finding error, we

vacate and remand.

I

Immediately after receiving the jury verdict on June 26, 1986, Gipson met with his trial

attorney

, Will Outlaw, to discuss the possibility of an appeal. Outlaw asked Gipson if he wanted to

file an appeal, to which Gipson replied, "Yes." After returning to his home in Austin, Gipson called

Outlaw, at which time Outlaw explained that he would need an additional $1500 to pursue the appeal.

Gipson told Outlaw that he did not have the money then, but would try to get the money together.1 "In a criminal case the notice of appeal by a defendant shall be filed in the district court within

10 days after the entry of (i) the judgment or order appealed from or (ii) a notice of appeal by the

Government." Fed.R.App.P. 4(b).

2 Gipson testified at the evidentiary hearing that he believed that he had an indefinite amount of

time in which to file an appeal, and that his attorney would handle the appeal once Gipson raised

the entire $1500. See Record on Appeal, vol. 16, at 20, 22.

3 Fed.R.Crim.P. 32(a)(2) does not require courts to inform defendants of the time period in

which to appeal. See id. ("After imposing sentence in a case which has gone to trial on a plea of

not guilty, the court shall advise the defendant of the defendant's right to appeal, including any

right to appeal the sentence, and of the right of a person who is unable to pay the cost of an

appeal to apply for leave to appeal in forma pauperis.").

4 Gipson did not appeal his conviction and sentence, but originally filed a pro se motion to

vacate sentence with the district court, pursuant to 28 U.S.C. § 2255. In his § 2255 motion,

Gipson alleged, inter alia, that ineffective assistance of counsel caused him to lose his right to

appeal. Gipson also requested permission to file a delayed notice of appeal, claiming that his

counsel never informed him of the time period for requesting an appeal. Before a hearing was

held on his § 2255 motion, the district court granted Gipson's motion to file a delayed notice of

appeal. A notice of appeal was thereafter filed with this Court, and Gipson moved to withdraw During these conversations, Outlaw did not inform Gipson of any filing deadlines. 1

During sentencing on September 4, the trial judge advised Gipson of his right to appeal and

his right to have a court-appointed attorney if he could not afford to hire one. Gipson did not ask for

an attorney to represent him, or inform the trial judge of his financial situation. 2 Immediately after

sentencing, Outlaw asked Gipson how he was coming along with getting his appeal money together.

Gipson replied that he was "working on it" and would notify Outlaw as soon as he came up with the

full amount. Neither Outlaw nor the trial judge informed Gipson that a notice of appeal had to be

filed within 10 days of the date of entry of the judgment. 3

Approximately two weeks after sentencing, Gipson called Outlaw to tell him that he had come

up with $700, an d asked if partial payment would be acceptable. Outlaw replied that the entire

amou nt was payable in advance, as Gipson had not as yet paid the entire trial fee. Judgment was

entered on September 23, and amended on October 17. No notice of appeal was filed.

On December 5, Gipson surrendered himself to the Federal Correctional Institute in Anthony,

New Mexico. Gipson asserts that it was here that he first learned that his notice of appeal should

have been filed within 10 days of entry of the judgment.

Gipson filed an amended 28 U.S.C. § 2255 motion with the district court. 4 Gipson arguedhis § 2255 motion. We dismissed Gipson's appeal for lack of jurisdiction, stating that the district

court had no authority to grant permission to file the delayed notice of appeal. The dismissal was

ordered without prejudice to allow Gipson to refile his § 2255 motion.

5 The district court did not make a finding on Gipson's ineffective assistance of counsel claim.

Rather, the court only decided Gipson's claim that he was denied his right to appeal because of his

attorney's failure to inform him of the 10-day filing period. However, because the claims are so

intertwined, we will address his ineffective assistance of counsel claim, rather than remand for a

finding. See Dean v. Ford Motor Co., 885 F.2d 300, 308 (5th Cir.1989) (deciding, rather than

remanding, claim not addressed by district court where claim was so intertwined with another

claim upon which district court did make findings, that no need existed to remand for further

proceedings). that his counsel's failure to inform him of time limit s: (1) caused him to lose his right to appeal; and

(2) constituted ineffective assistance of counsel. After conducting an evidentiary hearing, the district

court denied Gipson's § 2255 motion, finding that Gipson was not denied his right to appeal due to

his counsel's actions, but because Gipson "alone, fail ed t o affirmatively protect his right[ ] [to

appeal]." 5 Record on Appeal, vol. 1, at 408. Gipson appeals the denial of his motion, contending that

his counsel's failure to inform him of the time period in which to file an appeal denied him effective

assistance of counsel.

II

The single issue before us is whether Gipson was denied effective assistance of counsel by

his counsel's failure to inform him of the ten-day deadline for filing a notice of appeal, which Gipson

alleges caused him to lose his right to appeal. In reviewing a denial of a § 2255 motion for habeas

relief, the district court's findings of fact must be accepted unless clearly erroneous. U nited States

v. Casiano, 929 F.2d 1046, 1051 (5th Cir.1991) (citing Humphrey v. Lynaugh, 861 F.2d 875, 876

(5th Cir.1988), cert. denied, 490 U.S. 1024, 109 S.Ct. 1755, 104 L.Ed.2d 191 (1989)). However,

we review de novo questions of law. Id.

We examine claims of ineffective assistance of counsel to determine whe ther counsel 's

performance was both deficient and prejudicial to the petitioner. S trickland v. Washington, 466 U.S.

668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). "To demonstrate deficiency, the petitioner

must show that his counsel's actions "fell below an objective standard of reasonableness.' " United

States v. Smith, 915 F.2d 959, 963 (5th Cir.1990) (quoting Strickland, 466 U.S. at 688, 104 S.Ct.at 2064). 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. See United States

v. Green, 882 F.2d 999, 1003 (5th Cir.1989) (holding that prejudice o ccurs where failure to file

notice of appeal results from defendant's reliance on counsel's error); U nited States v. Hilliard, 752

F.2d 578, 581 (11th Cir.1985) (holding that petitioner suffered no prejudice where counsel's failure

to advise him of right to appeal did not result in him losing his right to appeal). 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.

Thor v. United States, 574 F.2d 215, 221 (5th Cir.1978); s ee Childress v. Lynaugh, 842 F.2d 768,

772 (5th Cir.1988) ("Prejudice resulting from the denial of a defendant's right to appeal is presumed

because a criminal conviction can be attacked on numerous grounds and thus, given the likelihood

of prejudice, a case-by-case inquiry is not worth the cost.").

In deciding an ineffectiveness claim, we "must jud ge t he reasonableness of counsel's

challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct."

Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. The following facts are undisputed. After receiving

the jury verdict, Gipson notified Outlaw of his desire to appeal his conviction. S ee Record on Appeal,

vol. 16, at 7. When Outlaw stated that he needed an additional $1500 to pursue his appeal, Gipson

informed him that he would try a nd get the money together. S ee id. at 8. After sentencing, but

before judgment was entered, Gipson called his attorney to inquire whether partial payment would

be sufficient. His attorney merely replied that he required full payment. S ee id. at 10-11. At no time

did Gipson 's at t o rney (or the trial judge) notify Gipson that he had ten days to file an appeal after

entry of the judgment. Judgment was subsequently entered, and no appeal was filed.

Prevailing professional norms are relevant in determining whether an attorney's conduct was

objectively reasonable. S ee Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. The ABA standards for

criminal justice provide:

Standard 4-8.2 Appeal

(a) After conviction, the lawyer sho u ld explain to the defendant the meaning and

consequences of the court's judgment and defendant's right of appeal....(b) The lawyer should take whatever steps are necessary to protect the defendant's right of

appeal.

ABA Standards Relating to the Administration of Criminal Justice, § 4-8.2 (2d ed. 1979). Under

this standard, we conclude that counsel's failure to inform Gipson of the time limit for filing an appeal

was objectively unreasonable.

Time limitations can be a crucial element in a defendant's right of appeal. S ee Lamb v.

Estelle, 667 F.2d 492, 496 (5th Cir.1982) ("[A]n indigent defendant is denied Sixth Amendment

effective assistance of counsel when his court-appointed attorney fails to advise him of his right to

appeal, of the procedure and time limits involved, and of his right to appointed counsel on appeal."

(emphasis added) (citing Lumpkin v. Smith, 439 F.2d 1084 (5th Cir.1971))); Martin v. State of

Texas, 694 F.2d 423, 424-25 (5th Cir.1982) (citing Lumpkin ); B onds v. Wainw right, 579 F.2d 317,

319 (5th Cir.1978) (citing L umpkin ). Notifying a defendant of the time limit for filing an appeal

becomes especially significant where, as here, counsel indicates his interes t in representi ng a

defendant on appeal, on the condition that defendant raise the required fee at some unspecified time

in the future. Such a defendant may be misled into believing that his attorney will be able to file an

appeal for an indefinit e period of time. Under such circumstances, an attorney who does not inform

a defendant of the applicable time limit at io ns fails to take those "steps ... necessary to protect the

defendant's right of appeal."

As for the prejudice component, Gipson testified at the evidentiary hearing that had he known

of the ten-day filing period, he would have stopped trying to raise Outlaw's required fee, and notified

the trial co urt that he requi red a court-appoi nted attorney

. S ee Record on Appeal, vol. 16, at 15.

However, the government, relying on the district court's judgment, maintains that Gipson suffered

no prejudice from Outlaw's error, because Gipson waived his right to appeal. The district court found

that Gipson "alone, failed to affirmat ively protect his ri ghts," Record on Appeal , vol . 1, at 408,

because prior to the entry of the judgment, Gipson: (1) knew he had the right to appeal; (2) knew

he had the right to an appointed-attorney if he could not afford to hire one; (3) knew he did not have

Outlaw's required fee; (4) knew that Outlaw would not represent him for less than full payment; and6 The district court also found no evidence that Outlaw "told or hinted to the petitioner that he

had an indefinite period of time to perfect an appeal." Record on Appeal, vol. 1, at 409. yet (5) failed to inform the court of his financial situation or even his desire to file an appeal. 6 S ee

Record on Appeal, vol. 1, at 408-09.

We ordinarily must accept a district court's finding of waiver unless it is clearly erroneous,

as it constitutes a finding of fact. S ee Meeks v. Cabana, 845 F.2d 1319, 1323 (5th Cir.1988) ("The

state court's finding of waiver

... involves a pure question of fact...."). However, we are not bound

to accept the dist rict court's finding of waiver if it was influenced by an incorrect view of the law.

See Zimmerman v. H.E. Butt Grocery, Co., 932 F.2d 469, 471 (5th Cir.) ("On appeal, a trial court's

findings of fact must be accepted unless clearly erroneous or influenced by an incorrect view of the

law."), cert. denied,

--- U.S.

----, 112 S.Ct. 591, 116 L.Ed.2d 615 (1991). In concluding that Gipson

waived his right to appeal, the district court relied upon the following authority: (1) M ack v. Smith,

659 F.2d 23 (5th Cir.1981); and (2) P erez v. Wainw right, 640 F.2d 596 (5th Cir.1981), cert. denied,

456 U.S. 910, 102 S.Ct. 1759, 72 L.Ed.2d 168 (1982). S ee Record on Appeal, vol. 1, at 408-09.

However, these cases do not provide the proper standard for determining whether a defendant has

waived his right to appeal. Rather, they stand for the propositions that where counsel misleads the

defendant to believe that notice was filed, see Mack, 659 F.2d at 25, or counsel promises, but fails,

to file a notice of appeal, see Perez, 640 F.2d at 599, a defendant is entitled to an out-of-time appeal.

Thus, the district court's finding of waiver was influenced by an incorrect view of the law.

We decide, rather than remand, the question whether Gipson waived his rig ht to appeal

,

because it is a question of law based upon the undisputed facts of this case. Waiver of the right to

appeal "requires that there be knowledge of the right to appeal and a failure to make known the desire

to exercise that right." S ee Meeks, 845 F.2d at 1322 (citing Norris v. Wainw right, 588 F.2d 130, 137

(5th Cir.) ("A defendant properly informed of his appellate rights may not "let the matter rest,' and

then claim that he did not waive his right to appeal." (citation omitted)), c ert. denied, 444 U.S. 846,

100 S.Ct. 93, 62 L.Ed.2d 60 (1979)). Gipson was informed of his right to appeal at sentencing. S ee

Record on Appeal, vol. 15, at 31-32. However, it cannot be said that he also failed to make known7 We do not mean to suggest that a waiver can never exist where a defendant requests that his

attorney file an appeal. For example, we have held that waiver can occur even if a defendant

requests that his attorney file an appeal, and no appeal is filed, where the defendant does not rely

on any error by counsel in losing the right to appeal. See Green, 882 F.2d at 1003. The instant

case is distinguishable because here Gipson lost his right to appeal due to his attorney's error. his desire to exercise that right, as he informed his attorney immediately after the jury verdict of his

desire to appeal. S ee Record on Appeal, vol. 16, at 7; s ee also Meeks, 845 F.2d at 1323 (upholding

finding of waiver where defendant failed to inform h is at t orney of his desire to appeal); H uff v.

Wainw right, 583 F.2d 744, 745 (5th Cir.1978) (same), cert. denied, 440 U.S. 963, 99 S.Ct. 1508,

59 L.Ed.2d 777 (1979). Because the record clearly indicates that Gipson informed his attorney of

his desire to appeal, we conclude that no waiver occurred. 7 Therefore, Gipson satisfied the prejudice

element of Strickland. See Childress, 842 F.2d at 772.

III

For the foregoing reasons, we VACATE the judgment of the district court in denying Gipson's

habeas motion, and REMAND for proceedings consistent with this opinion.