* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-40410

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GERMAN DUQUE,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas 

(G-95-CV-457)

_________________________________________________________________

July 30, 1998

Before KING, SMITH, and PARKER, Circuit Judges.

PER CURIAM:*

Defendant-appellant German Duque appeals the district

court’s denial of his motion to vacate, set aside, or correct his

sentence. For the reasons set forth below, we vacate the

judgment of the district court and remand the case for an

evidentiary hearing on the issues of (1) whether Duque was

informed of his right to appointed counsel on appeal and (2)
2

whether Duque was correctly informed of his right to appeal his

sentence.

I. FACTUAL & PROCEDURAL BACKGROUND

In November 1990, defendant-appellant German Duque, along

with several others, was indicted in a four-count indictment. 

Duque was named in three of the counts: (1) conspiracy to

possess with intent to distribute more than five kilograms of

cocaine (Count One), (2) possession with intent to distribute

cocaine (Count Two), and (3) using and carrying a firearm during

and in relation to the drug trafficking crimes (Count Four). 

Duque retained attorney John L. Mendoza to represent him.

Pursuant to a written plea agreement, Duque pleaded guilty

to Count One of the indictment. In exchange for the plea, the

government dismissed Counts Two and Four of the indictment,

agreed to stipulate that Duque accepted responsibility pursuant

to § 3E1.1 of the Sentencing Guidelines, and promised to

recommend that Duque be sentenced at the bottom end of the

appropriate Sentencing Guidelines range. In the plea agreement,

Duque acknowledged understanding that he faced a possible

sentence of ten years to life, followed by a minimum of five

years of supervised release, and a possible fine of up to

$4,000,000. Duque further stated that he understood that the

court could assess any lawful sentence, including the maximum. 
 

1 Duque apparently does not speak English well. A

translator was present during the proceedings, and Mendoza spoke

to Duque in Spanish.

3

Over Duque’s objections, the district court adopted the

recommendations contained in the Presentence Investigation Report

(PSR) and found that Duque’s base offense level should be

increased because a firearm was possessed during the commission

of the offense and because Duque was an organizer or manager of

the conspiracy. On April 11, 1991, the district court sentenced

Duque to 292 months of imprisonment followed by five years of

supervised release. The district court then informed Duque that

he might have the right to appeal the sentence and instructed him

to discuss that right with his attorney.1 The prosecutor further

informed Duque that he had ten days to file his notice of appeal.

Duque did not file a direct appeal, but in July 1995, he

filed a pro se motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255, alleging that he was

denied his right to appeal his sentence because his attorney

failed to appeal and did not explain why he had failed to do so. 

Duque contended that Mendoza’s failure to appeal his sentence,

when he had not been relieved as counsel, violated his right to

effective assistance of counsel on appeal. 

The government answered and requested that the court expand

the record to include an affidavit from Mendoza. The government

then moved for summary judgment, arguing that because, according
4

to the affidavit, Mendoza adequately advised Duque of his right

to appeal, Duque waived that right by failing to assert it. 

Duque responded that the statements in Mendoza’s affidavit were

untrue, and he attempted to refute them by filing his own

affidavit. Duque argued that 

[t]he only reason Mendoza failed to appeal [his]

sentence, is the fact that the family failed to raise

enough money to meet Mendoza’s needs. Mendoza had a

duty to either file the Notice of Appeal, or bring the

problem to the attention of the Court. 

In addition, both Duque’s wife and his sister filed affidavits

stating that they spoke to Mendoza after Duque’s sentencing

hearing about their remaining options. Although both admit that

Mendoza clearly advised them that he required more money in order

to pursue Duque’s appeal, Duque’s sister stated in her affidavit

that she told Mendoza that it would be difficult for them to pay

the money and that, after speaking to Mendoza, she was under the

impression that he would help her brother.

The magistrate judge recommended that Duque’s § 2255 motion

be denied, finding that because Duque was aware of both his right

to appeal and the ten-day time limit, he had waived his right to

appeal. Moreover, he noted that, even accepting all of the

statements in Duque’s affidavit as true, Duque had made no

assertion that anyone ever actually instructed Mendoza to file an

appeal.

Duque objected to the magistrate judge’s report and

recommendation, arguing that an evidentiary hearing was required
 

2 On June 9, 1997, Duque’s appeal was dismissed for want

of prosecution for failure to pay the docketing fee within the

time fixed by the rules. In July 1997, this court granted

Duque’s unopposed motion to reinstate the appeal. The district

court thereafter granted Duque permission to proceed in forma

pauperis and granted him a certificate of appealability (COA) “on

the sole issue of whether his retained trial counsel rendered

ineffective assistance by failing to pursue a direct appeal from

Duque’s conviction.” However, the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2253, does not

apply to § 2255 petitions filed prior to April 24, 1996. See

Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997). As Duque filed

his § 2255 motion in July 1995, he did not need a COA in order to

appeal its denial; the district court’s issuance of a limited COA

is therefore irrelevant. See United States v. Roberts, 118 F.3d

1071, 1072 (5th Cir. 1997). 

5

and that his affidavit indicated that he made clear to Mendoza

that he wanted to appeal his sentence. The district court

nevertheless accepted the report and recommendation of the

magistrate judge and denied Duque’s § 2255 motion. Duque timely

filed his notice of appeal.2 

II. STANDARD OF REVIEW

“In challenges to district court decisions under 28 U.S.C.

§ 2255, we measure findings of fact against the clearly erroneous

standard and questions of law de novo.” United States v.

Faubion, 19 F.3d 226, 228 (5th Cir. 1994). A district court’s

conclusions regarding a petitioner’s claim that he received

ineffective assistance of counsel are “mixed questions of law and

fact and, thus, also subject to de novo review.” Id. We will

generally uphold a district court’s factual finding that the

defendant waived his right to appeal unless it is clearly

erroneous. United States v. Gipson, 985 F.2d 212, 216 (5th Cir.
6

1993). “However, we are not bound to accept the district court’s

finding of waiver if it was influenced by an incorrect view of

the law.” Id.

III. DISCUSSION

To prevail on a claim of ineffective assistance of counsel,

a petitioner must show that his counsel’s performance was both

deficient and prejudicial. Strickland v. Washington, 466 U.S.

668, 690, 692 (1984); Gipson, 985 F.2d at 215. In order to

demonstrate deficient performance, the petitioner must show that

his counsel’s actions “fell below an objective standard of

reasonableness.” Id. at 688. However, “a petitioner need not

prove prejudice under Strickland when the actions complained of

resulted in the actual or constructive denial of the assistance

of counsel altogether.” Childs v. Collins, 995 F.2d 67, 68 (5th

Cir. 1993); see also Gipson, 985 F.2d at 215 (“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.”). 

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, 393-96 (1985); Hamilton v.

McCotter, 772 F.2d 171, 181 (5th Cir. 1985). Thus, “[i]f a

petitioner can prove that the ineffective assistance of counsel

denied him the right to appeal, then he need not further
7

establish--as a prerequisite to habeas relief--that he had some

chance of success on appeal.” Gipson, 985 F.2d at 215. 

Appellate counsel’s role is to “provide information on how

to appeal and the opportunity to do so,” but it is up to the

client “to make the final decision as to take or not take the

appeal.” Faubion, 19 F.3d at 231. Thus, “[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.” 

Norris v. Wainwright, 588 F.2d 130, 134-35 (5th Cir. 1979)

(citation omitted) (quoting Worts v. Dutton, 395 F.2d 341, 344

(5th Cir. 1968)); see also Childs, 995 F.2d at 69 (quoting

Norris). This is so because the right to appeal

is not a negative right to be used as a shield against

government intrusion. Instead, it is a positive right

that must be affirmatively exercised. Consequently,

waiver of the right to appeal requires only that there

be a knowledge of the right to appeal and a failure to

make known the desire to exercise that right.

Childs, 995 F.2d at 69. 

Duque claims that “Mr. John Mendoza advised [him that] he

had no ground for an appeal, whithout [sic] any explaination

[sic]. The defendant did not know how or when to exercise his

right to appeal, because his lawyer . . . refused to take an

appeal, when it was not his choice.” Construing Duque’s argument

broadly in deference to his pro se status, he raises two points
 

3 Duque also raises several substantive points of error

regarding his sentence and his counsel’s performance at the

sentencing hearing. As we conclude that Duque is entitled to an

evidentiary hearing to determine whether he should be granted an

appeal out-of-time, we do not address these issues. Should Duque

be entitled to an appeal out-of-time, he may raise in that

proceeding any points of error that he has properly preserved for

appeal. 

8

of error that we must address.3 See Maleng v. Cook, 490 U.S.

488, 493 (1989); Pleasant v. Texas, 134 F.3d 1256, 1258 (5th Cir.

1998). First, it appears that Duque may not have been informed

of his right to appointed counsel on appeal; second, it is not

clear whether Duque was fully or correctly informed of his right

to appeal his sentence. 

The government asserts that there was no ineffective

assistance of counsel because “Duque was advised of the right to

appeal, the procedure for perfecting appeal, and the time limit

for perfecting it.” However, the government makes no mention of

whether Duque was ever informed of his right to appointed counsel

on appeal. The government also contends that Mendoza’s advice

regarding Duque’s right to appeal his sentence was reasonable. 

We address each of these issues in turn. 

First we consider whether an evidentiary hearing is

necessary to determine whether Duque was adequately informed of

his right to appointed counsel on appeal if he could not afford

to retain counsel at his own expense. At the sentencing hearing,

the district court stated that Duque “may well have the right to

appeal the sentence” and instructed him to confer with his
 

4 In fact, the only mention the court ever made of

Duque’s right to counsel on appeal was in the following statement

at the rearraignment:

[I]n the event that I elect to depart from the

guidelines either upwards or downward, let me admonish

you that you would have the right to appeal in certain

circumstances and you would, of course, have the right

to counsel and the assistance of counsel in the

preparation of any such appeal[.]

This statement alone was not adequate to notify Duque of his

right to appointed counsel on appeal because the court mentions

only Duque’s right to appeal “in the event that [the court]

elect[s] to depart from the guidelines,” which the court did not

do. Moreover, the court’s statement did not make clear that

Duque was entitled to appointed counsel should he be unable to

afford to pay his then-current attorney to pursue his appeal.

9

attorney about what his rights were and “what the best course of

action would be.” In addition, the prosecutor reminded Duque of

the ten-day time limit. However, there is no indication in the

record that the court informed Duque that, on appeal, he was

entitled to be represented by appointed counsel if he could not

afford to hire an attorney.4 Moreover, in his affidavit, Mendoza

does not claim to have informed Duque of his right to appointed

counsel on appeal. 

Finally, the report and recommendation of the magistrate

judge indicates that he did not consider whether Duque was

informed of his right to appointed counsel. The report states,

“Duque knew of his right to appeal and knew of the ten day period

of time in which to exercise it; the District Court provided this

information at sentencing. This is all the Constitution

requires.” However, we have held that the Constitution requires
10

that “the client be advised not only of his right to appeal, but

also of the procedure and time limits involved and of his right

to appointed counsel on appeal.” Childs, 995 F.2d at 69

(emphasis added); see also Faubion, 19 F.3d at 231. Thus, Duque

is entitled to an evidentiary hearing on the issue of whether he

was informed of his right to appointed counsel on appeal.

The second issue we must address is whether Duque was fully

informed of his right to appeal his sentence. Duque claims that

Mendoza “advised the defendant he had no ground for an appeal,

whithout [sic] any explaination [sic].” Mendoza’s affidavit

states that, immediately following the district court’s

pronouncement of Duque’s sentence, he informed Duque that 

under circumstances such as these, he could appeal his

sentence if the Court made an upward departure, without

a factual or legal basis, from the Guideline Range

reflected by the facts of his case as applied to the

Guideline Tables. In this case, the Court imposed the

minimum 292 months in a Level 40 matter, and it was

counsel’s opinion that no viable grounds for appeal

would lie. 

The government contends that Mendoza’s advice was a reasonable

interpretation of 18 U.S.C. § 3742(a) which explains a criminal

defendant’s right to appeal his sentence. However, a defendant

may appeal the factual findings underlying the district court’s

enhancement of his sentence as well as the court’s application of

the Sentencing Guidelines to those facts. See, e.g., United

States v. Thomas, 120 F.3d 564, 574 (5th Cir. 1997) (appeal of a

sentence enhancement based on § 3B1.1(c) of the Sentencing
 

5 We express no opinion as to the merits of such an

appeal.

 

6 We emphasize that Duque is only entitled to an appeal

out-of-time if the district court finds that Mendoza advised him

that he was not entitled to appeal his sentence because the

district court did not depart upward. In contrast, should the

district court conclude that Mendoza was merely given arguably

bad legal advice regarding his chances of success on appeal of

the enhancements, then he is not entitled to an appeal out-oftime. This is so because, where the alleged ineffective

assistance of counsel does not rise to the level of effectively

depriving a defendant his right to appeal, he must show that he

was prejudiced by the advice in order to receive an appeal outof-time. See Strickland, 466 U.S. at 690, 692; Gipson, 985 F.2d

at 215. Duque has made no showing that Mendoza’s advice

11

Guidelines); United States v. Paulk, 917 F.2d 879, 881 (5th Cir.

1990) (appeal of sentence enhancement based on § 2D1.1(b)(1) of

the Sentencing Guidelines). 

In this case, the district court fully adopted the findings

in the PSR and enhanced Duque’s sentence four levels based on the

PSR’s finding that Duque was a leader or organizer and that a gun

was possessed in connection with the offense. Duque was entitled

to appeal the findings supporting the court’s enhancement of his

offense level and the application of the Sentencing Guidelines to

those findings if he so chose.5 See Faubion, 19 F.3d at 231

(“The attorney’s role . . . is to provide information on how to

appeal and the opportunity to do so; the client’s role is to make

the final decision as to take or not to take the appeal.”). As

it is unclear whether Mendoza fully explained Duque’s right to

appeal the enhancement of his sentence, we conclude that Duque is

also entitled to an evidentiary hearing on this issue.6 
prejudiced him to the extent contemplated by Strickland.

12

IV. CONCLUSION

For the foregoing reasons, we REVERSE the judgment of the

district court and REMAND the case for an evidentiary hearing on

the issues of (1) whether Duque was informed of his right to

appointed counsel on appeal and (2) whether Duque was correctly

informed of his right to appeal his sentence. If the district

court concludes that Duque was deprived of either of these pieces

of information, then he is entitled to an appeal out-of-time.