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this opinion should not be published and is not precedent except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

United States Court of Appeals

Fifth Circuit

FILED

January 14, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-41509

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELEE CAMPOS CAMARGO,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. M-00-CV-175 

USDC No. M-99-CR-470-1

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

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Elee Campos Camargo (Camargo), former federal prisoner 

# 85995-079, challenges the district court’s dismissal of his

28 U.S.C. § 2255 petition. The district court granted a

certificate of appealability (COA) on the issues whether trial

counsel failed to advise Camargo about his appellate rights and

whether counsel failed to file a notice of appeal as requested by

Camargo. The Government argues that Camargo seeks to expand the

grant of COA to include whether counsel failed to consult with
No. 03-41509

-2-

Camargo about whether he wished to file a notice of appeal. 

Counsel’s failure to consult concerning an appeal is sufficiently

interrelated with the two issues upon which COA was granted-- 

whether counsel failed to advise Camargo properly as to his

appellate rights and whether counsel failed to file a notice of

appeal as requested--that we consider the failure-to-consult

nuance to be properly before us. 

Mootness

Although Camargo filed his 28 U.S.C. § 2255 motion while he

was in custody, he has subsequently been released from prison.

Once the petitioner’s sentence has expired, we must consider

whether his release caused the petition to be moot because it no

longer presents a case or controversy under Article III, § 2, of

the Constitution. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). 

The case-or-controversy requirement demands that “some concrete

and continuing injury other than the now-ended incarceration or

parole--some ‘collateral consequence’ of the conviction--must

exist if the suit is to be maintained.” Id. (citation omitted). 

The Supreme Court has said that there is a presumption of

collateral consequences with respect to criminal convictions. 

Id. at 8. Because Camargo is still serving his term of

supervised release, the case-or-controversy requirement is met

here and the case is not moot. See Spencer, 523 U.S. at 8.

Ineffective assistance of counsel
No. 03-41509

-3-

To establish a claim of ineffective assistance of counsel,

Camargo must prove that counsel’s conduct was constitutionally

deficient and that he was prejudiced by the deficient

performance. See Strickland v. Washington, 466 U.S. 668, 687

(1984). “The Constitution requires 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.” See White v. Johnson, 180 F.3d 648, 652 (5th Cir.

1999). Counsel’s failure to advise a defendant of the foregoing

constitutes deficient performance within the meaning of

Strickland. See id. To establish prejudice, a defendant must

demonstrate that counsel’s failure to fully inform him of his

appellate rights resulted in the loss of the right to appeal. 

See id. at 653. 

The district court’s determination that Camargo did not

request that counsel file a notice of appeal is not clearly

erroneous. See Little v. Johnson, 162 F.3d 855, 859 (5th Cir.

1998). Both counsel’s affidavit and testimony at the evidentiary

hearing support the district court’s conclusion. See id.

The district court determined that the sentencing court

informed Camargo of his right to appointed appellate counsel and

therefore, Camargo could not establish a claim of ineffective

assistance of counsel on this issue. The sentencing transcript

reflects that the court informed Camargo that he could appeal in

forma pauperis but did not specifically inform Camargo that he
No. 03-41509

-4-

was entitled to appointed appellate counsel. Camargo asserts

that he did not understand the meaning of the word in forma

pauperis and counsel testified that he did not explain to Camargo

the meaning of in forma pauperis and could not recall whether he

informed Camargo that he had the right to appointed counsel. 

Under these circumstances, the district court clearly erred in

finding that Camargo had been advised by the district court at

sentencing that he had the right to appointed appellate counsel. 

See Meanes v. Johnson, 138 F.3d 1007, 1010 (5th Cir. 1998). 

Accordingly, the appropriate remedy is for the district court to

reinstate the criminal judgment on the docket in order for

Camargo to file an out-of-time appeal. See United States v.

West, 240 F.3d 456, 459-60 (5th Cir. 2001). Camargo’s 28 U.S.C.

§ 2255 motion should be dismissed without prejudice. Id. The

judgment of the district court is VACATED and the case is

REMANDED with instruction for the district court to reinstate the

criminal judgment.