IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50938

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARCUS DESHAW HICKS,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 7:10-CR-292-1

Before KING, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

Marcus Deshaw Hicks, federal prisoner # 42547-177, seeks a certificate 

of appealability (COA) to appeal the dismissal of his 28 U.S.C. § 2255 motion, 

wherein he challenged his conviction and sentence for one count of conspiracy 

to possess with the intent to distribute more than 50 grams of a controlled 

substance. The district court dismissed Hicks’s § 2255 motion and denied him 

a COA.

A COA may issue only if Hicks “has made a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court 

 

* 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

September 28, 2016

Lyle W. Cayce

Clerk

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No. 15-50938

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has denied relief on procedural grounds, a COA may not issue unless the 

prisoner shows that “jurists of reason would find it debatable whether the 

[motion] states a valid claim of the denial of a constitutional right and that 

jurists of reason would find it debatable whether the district court was correct 

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When 

a district court has denied relief on the merits, the prisoner “must demonstrate 

that reasonable jurists would find the district court’s assessment of the 

constitutional claims debatable or wrong.” Id.

Hicks argues that his appellate counsel was ineffective for failing to 

advise him in writing, after this court’s affirmance of his conviction on direct 

appeal, that he could seek certiorari in the Supreme Court. While it is disputed 

whether Hicks knew of his right to seek certiorari, it is undisputed that his 

appellate counsel did not provide him notice of this right in writing. Notice in 

writing is required by this court’s Plan for Representation on Appeal Under 

the Criminal Justice Act (CJA Plan), which states that “[p]romptly after the 

court of appeals decision issues, appointed counsel must advise the client in 

writing of the right to seek further review by filing a petition for writ of

certiorari with the United States Supreme Court.” CJA Plan, § 6, ¶ 4. This 

court has previously granted § 2255 relief on claims that appellate counsel 

failed to advise a defendant of his ability to seek certiorari review in the 

Supreme Court. See Lacaze v. United States, 457 F.2d 1075, 1076 (5th Cir. 

1972); Ordonez v. United States, 558 F.2d 448, 449 (5th Cir. 1979). 

Hicks has established that the district court’s dismissal of his § 2255 

motion on this ground is debatable. See Slack, 529 U.S. at 484. A COA is 

therefore granted on this issue. Furthermore, in light of the district court’s 

determination that Hicks’s appellate counsel did not inform Hicks in writing 

of his right to seek Supreme Court review, we recall our mandate in Hicks’s 

direct criminal appeal, United States v. Hicks, 537 F. App’x 449 (5th Cir. 2013), 

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and direct the issuance of a new mandate affirming our prior affirmance of the 

judgment of conviction. Hicks is hereby advised of his renewed right to petition 

the Supreme Court for certiorari to review this court’s affirmance of his direct 

appeal. Since Hicks has proceeded without counsel in forma pauperis in his 

§ 2255 proceeding, we also order appointment of counsel to assist him in the 

prosecution of his petition for certiorari.

In Hicks’s COA motion, he also argues that (i) his guilty plea was 

involuntary because his trial counsel erroneously advised him regarding the 

merits of filing a motion to suppress and that he would have proceeded to trial 

but for his counsel’s allegedly erroneous advice; and (ii) his appellate counsel 

rendered ineffective assistance when he failed to argue that Hicks’s guilty plea 

was involuntary, because—under the Fair Sentencing Act of 2010, Pub. L. No. 

111-220, 124 Stat. 2372 (FSA) and the Supreme Court’s decision in Dorsey v. 

United States, 132 S. Ct. 2321 (2012)—the mandatory minimum sentence for 

his offense was reduced from 20 years to 10 years, and the reduction was 

applicable to offenders who, like Hicks, committed offenses prior to August 3, 

2010, but were sentenced after the FSA went into effect. Hicks has not made 

the necessary showing for a COA with respect to these claims. See Slack, 529 

U.S. at 484. Accordingly, as to these claims, a COA is denied.

Hicks also moves for leave to proceed in forma pauperis (IFP). That 

motion is granted.

Hicks’s motion for a COA is hereby GRANTED in part and DENIED in 

part. Hicks’s motion to proceed IFP is hereby GRANTED. The original 

judgment of this court on direct appeal is VACATED, a new judgment is 

ENTERED reaffirming the judgment of conviction, and counsel for Hicks is 

ORDERED to be appointed to assist him in the prosecution of his petition for 

certiorari. 

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The Clerk of Court is also instructed to enter this Order in No. 11-50608, 

Hicks’s direct appeal in which a new mandate will be issued.

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