IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40135

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

GARY DON FRANKS

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:05-CR-499

USDC No. 4:03-CR-84

Before BARKSDALE, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Proceeding in forma pauperis and pro se, and pursuant to three issues

certified for appeal by our court, Gary Don Franks appeals the denial of his 28

U.S.C. § 2255 motion, challenging his 2004 guilty-plea conviction. (Franks’

motion not to publish this opinion is DENIED as moot; his motion to strike the

Government’s response to Franks’ not-publish motion is DENIED.)

United States Court of Appeals

Fifth Circuit

F I L E D

October 6, 2010

Lyle W. Cayce

Clerk

 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.

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For the three certified issues, we hold: although the district court erred

in ruling that the § 2255 motion is both time-barred and barred by the appellatewaiver provision in Franks’ plea agreement, it did not abuse its discretion by not

conducting an evidentiary hearing for Franks’ due-process claim. AFFIRMED.

I.

Pursuant to a plea agreement, Franks pleaded guilty to possession with

intent to distribute and dispense methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1), and possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g). Franks was sentenced, inter alia, to 101 months’ imprisonment.

Judgment was entered on 27 July 2004.

The next day, Franks filed a timely pro se notice of appeal. His appeal was

dismissed for want of prosecution on 22 September 2004.

On 21 December 2005, Franks filed the § 2255 motion at issue, claiming

his Sixth Amendment right to effective assistance of counsel was violated when:

(1) the district court cut off funding for his privately-retained attorney; (2) his

counsel failed to investigate the strength of the Government’s case, thereby

precluding him from deciding intelligently whether to plead guilty or proceed to

trial; and (3) his counsel failed to move to suppress evidence obtained in

violation of his Fourth Amendment rights. In addition, Franks claimed his Fifth

Amendment right to due-process was violated when the district court denied him

appointment of counsel on direct appeal.

The district court referred the matter to a magistrate judge for a report

and recommendation. The magistrate judge recommended: Franks’ § 2255

motion should be denied as time-barred; he should be denied equitable tolling

because he failed to establish that an unconstitutional government action

prevented him from filing a timely motion; he had waived his right to appeal;

and, in the alternative, his claims were without merit. Additionally, the

magistrate judge recommended denial of a certificate of appealability (COA),

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even though Franks had not filed a request for a COA. Franks filed objections

to the report and recommendation.

The district court adopted the magistrate judge’s report and

recommendation and denied Franks’ § 2255 motion. The district court ruled:

Franks’ actual-innocence claim was without merit and could not excuse the

statute of limitations; Franks’ § 2255 motion was barred by the appellate-waiver

provision in his plea agreement; Franks’ guilty plea waived all non-jurisdictional

defects except those set forth in Federal Rule of Criminal Procedure 11(a)(2);

and, Franks failed to show that he either requested the appointment of appellate

counsel or filed a § 2255 motion on 29 July 2005 (Franks asserted that a request

to proceed in forma pauperis on that date invoked jurisdiction pursuant to

§ 2255). The district court ruled, in the alternative, that the issues raised in

Franks’ § 2555 motion lacked merit.

II.

On 12 November 2009, our court denied the majority of Franks’ COA

requests (concerning the striking of his oversized objections to the magistrate

judge’s report and recommendation, the denial of his motion for partial summary

judgment, and his claims of ineffective assistance of counsel) but granted a COA

for: whether his § 2255 motion was either time-barred or barred by the

appellate-waiver provision in his plea agreement; and whether the district court

erred in dismissing his due-process claim without conducting an evidentiary

hearing. See 28 U.S.C. § 2253.

A.

A district court’s factual findings are reviewed for clear error; it’s legal

conclusions, de novo. E.g., United States v. Edwards, 442 F.3d 258, 264 (5th Cir.

2006). The district court erred in ruling on alternative bases that the § 2255

motion was barred.

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1.

Regarding the time bar, § 2255 establishes the period for filing such

motions. 28 U.S.C. § 2255(f). The motion may be filed within one year from,

inter alia, the date the judgment of conviction became final. 28 U.S.C.

§ 2255(f)(1).

Judgment for Franks’ criminal case was entered on 27 July 2004; he filed

a timely notice of appeal the next day. On 22 September 2004, his appeal was

dismissed for want of prosecution.

Franks insists his conviction became final no earlier than 21 December

2004, 90 days after dismissal of his direct appeal. Because his § 2255 motion

was delivered to prison officials on 21 December 2005, Franks contends it was

timely pursuant to § 2255(f)(1). (Franks’ § 2255 motion was filed on 27

December 2005; however, under the prison-mailbox rule, the motion was filed

on 21 December 2005, the day his motion was deposited into a legal mailbox

where he was incarcerated. E.g., Spotville v. Cain, 149 F.3d 374, 376-78 (5th

Cir. 1998).)

The Government counters: because Franks did not raise on appeal any

substantive issues regarding either his conviction or sentence, his petition for

a writ of certiorari would have been limited to whether our court correctly

dismissed Franks’ appeal for want of prosecution. Therefore, the Government

urges, the direct appeal for Franks’ criminal conviction ended on 10 August

2004, ten days after the district court entered judgment, resulting in the

limitations period for filing the § 2255 motion expiring on 10 August 2005.

In concluding that Franks’ § 2255 motion was time-barred, the district

court relied upon United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008).

The district court reasoned that Franks’ direct appeal became final on 10 August

2004 because his appeal was dismissed for want of prosecution, and because any

petition for certiorari would not have contested direct review of his conviction.

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In Plascencia, defendant filed a late pro se notice of appeal, which our

court construed as a motion for an extension of time. Plascencia, 537 F.3d at

387; see FED. R. APP. P. 4(b)(4). Our court held: because defendant never filed

an effective notice of appeal, his judgment became final ten days after it was

entered; and any petition for writ of certiorari defendant could have filed after

dismissal of his direct appeal would not have encompassed direct review of his

conviction. Plascencia, 537 F.3d at 389. “Instead, it would have concerned only

[this court’s] ruling that the district court did not abuse its discretion by

declining to grant [the defendant] an appeal.” Id.

On the other hand, when a federal defendant files a timely notice of

appeal, a judgment of conviction becomes final for purposes of § 2255(f)(1) on the

date of the Supreme Court’s denial of a petition for writ of certiorari. United

States v. Thomas, 203 F.3d 350, 355 (5th Cir. 2000). When such a petition has

not been filed, the judgment becomes final upon the expiration of the 90-day

period for filing such a petition. Clay v. United States, 537 U.S. 522, 532 (2003);

United States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000). And, when a

federal defendant files a timely notice of appeal, and that appeal is dismissed for

want of prosecution, a conviction becomes final upon the expiration of the time

for seeking certiorari, even when the prisoner has not filed such a petition.

Gamble, 208 F.3d at 537. A § 2255 motion is thereby deemed timely, so long as

“[i]t was filed within a year after the ninety-day period for seeking certiorari

review of his conviction as finalized in this court”. Id.

Here, unlike defendant in Plascencia, Franks filed a timely notice of

appeal. See United States v. McWilliams, 308 F. App’x 806, 808 (5th Cir. 2009)

(noting Plascencia was not implicated because a timely notice of appeal).

Because defendants are entitled to the benefit of the additional 90-day period

even when their direct appeal is dismissed for want of prosecution, Gamble, 208

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F.3d at 536-37, Franks’ conviction became final on 21 December 2004, when the

90-day period for filing a certiorari petition expired. See Clay, 537 U.S. at 532.

2.

Concerning the bar by the appellate-waiver provision in Franks’ plea

agreement, that agreement was silent on his right to collaterally challenge his

conviction under § 2255. See United States v. McKinney, 406 F.3d 744, 746 (5th

Cir. 2005) (waiver of defendant’s right to statutory appeal must be explicit and

unambiguous); United States v. White, 307 F.3d 336, 338 (5th Cir. 2005) (plea

agreement expressly included waiver of right to challenge sentence under 28

U.S.C. § 2255). Along that line, the Government concedes that the district

court’s reading of Franks’ waiver is too broad. We need not address this issue

further. See United States v. Sadler, 2010 WL 3007909, at *1 (5th Cir. 30 July

2010); see also United States v. Merrifield, 339 F. App’x 374, 375 (5th Cir. 2009)

(holding guilty plea of Franks’ co-defendant did not bar right to collaterally

challenge conviction and sentence under § 2255).

B.

For the final issue certified, Franks maintains the district court erred by

denying his due-process claim without conducting an evidentiary hearing. He

contends: he made a sufficient showing to warrant an evidentiary hearing on his

claim that his Fifth Amendment right to due-process was violated by the district

court’s failure to grant him in forma pauperis status and appoint him counsel on

direct appeal.

The denial of a § 2255 motion without an evidentiary hearing is reviewed

for abuse of discretion. E.g., United States v. Cervantes, 132 F.3d 1106, 1110

(5th Cir. 1998) (citing United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir.

1992)). “A trial court abuses its discretion when its ruling is based on an

erroneous view of the law or a clearly erroneous assessment of the evidence.”

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United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005) (quoting Bocanegra

v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)).

Rule 8 of the Rules Governing § 2255 Proceedings states: “If the [§ 2255]

motion is not dismissed, the judge must review the answer, any transcript and

records of prior proceedings, and any materials submitted . . . to determine

whether an evidentiary hearing is warranted”. See United States v. Cavitt, 550

F.3d 430, 441-42 (5th Cir. 2008) (quoting Edwards, 442 F.3d at 264). Movant is

entitled to an evidentiary hearing on an issue presented in his § 2255 motion if

he can provide “independent indicia of the likely merit of [his] allegations,

typically in the form of one or more affidavits from reliable third parties . . .”.

Cervantes, 132 F.3d at 1110 (emphasis added). “If, however, the [movant]’s

showing is inconsistent with the bulk of [his] conduct or otherwise fails to meet

[his] burden of proof in the light of other evidence in the record, an evidentiary

hearing is unnecessary.” Id. (citing United States v. Smith, 844 F.2d 203, 208

(5th Cir. 1988)).

Franks contends he is entitled to an evidentiary hearing because: his

notice of appeal, docketed on 28 July 2004, indicated sufficiently his request for

appointed counsel during his appeal; and he submitted to the district court an

amended notice of appeal, which was mailed on 29 July 2004. In support,

Franks presents what appear to be three independent indicia supporting the

merits of his allegations: the self-serving statements contained in his § 2255

motion, which includes a copy of the alleged undocketed 29 July notice; and, the

affidavits of prisoners (Franks’ co-defendants) Ricky Joe James and Paul L.

Schlieve.

1.

Franks contends his pro se notice of appeal, docketed 28 July 2004,

presented his appointed-counsel request:

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COMES NOW, Gary Don Franks, without any attorney of

record and would file this Notice of Appeal, in the above

styled and numbered cause, by means of “pro-se” until such

time as I can be appointed counsel or can afford to hire

counsel.

WHEREFORE, Premises considered, the defendant

respectfully requests this Honorable court accept this, his

Notice of Appeal.

(Emphasis added.)

The district court found this notice of appeal lacked a request for

appointed counsel. The notice was interpreted to include, at best, a suggestion

that Franks might request appointment if he could not afford to retain counsel.

The district court did not abuse its discretion in ruling the notice did not

request appointment of counsel. Besides the language contained in that notice,

the district court’s determination was supported in part by: Franks’ failure to

inquire into the status of his claimed request for appointed counsel, either before

or after his direct appeal was dismissed for want of prosecution; Franks’ having

been represented by retained counsel during the earlier district court

proceedings; and, Franks’ letter to the district court on 8 July 2004, stating that

he was going to retain another attorney.

Franks further contends the district court should have inquired into his

financial circumstances at the time he filed his pro se notice of appeal, citing

Rodriguez v. United States, 395 U.S. 327 (1969). Rodriguez held, however, that,

when counsel fails to file a requested appeal, defendant is entitled to resentencing and an appeal without having to show likelihood of success. Id. at

329-30. Rodriguez did not impose a general duty on district courts to inquire

into the pro se appellant’s finances.

2.

Regarding the claimed second notice of appeal on 28 July 2004, Franks

asserts it included a request for leave to proceed in forma pauperis and for the

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appointment of counsel on his direct appeal. This notice was not docketed, and

it apparently first came to the district court’s attention as an attachment to

Franks’ § 2255 motion, filed on 27 December 2005.

To explain the discrepancy between the first and second notices of appeal,

Franks relies on the following assertions: the district court’s claimed history of

improper filings; the Assistant United States Attorney’s (AUSA) failure to deny

“having received the copy of the Notice of Appeal that was served on her in her

official capacity”; his mailing a copy of the notice of appeal to the district judge;

and the affidavits of Schlieve and James.

Franks’ assertion that the district court has a history of improperly

docketing his filings is unavailing. His first example, that an application to

proceed in forma pauperis was received by the district court on 29 July 2005, and

was not docketed until 27 December 2005, is unhelpful: Franks’ motion was not

filed because it was premature until he submitted his § 2255 motion. His

second example, that his “motion for Discovery of Documents Probative of the

Incarceration of Rodney Lewis Crowley” was received by the clerk on 28 August

2006 but not filed, is belied by its certificate of service dated 13 September 2006.

 Additionally, his assertions that the court was aware of his second notice

of appeal because he mailed copies to the district judge and to the AUSA are

unsubstantiated. See Cervantes, 132 F.3d at 1110 (finding petitioner’s

conclusional allegations insufficient to merit request for evidentiary hearing). 

The Schlieve and James affidavits are unhelpful because they come from

unreliable parties. See id. Schlieve’s affidavit is insufficient because it shows

he was not an eyewitness to the events in question, thereby fatal to its value as

independent indicia. See United States v. Merrill, 340 F. App’x 976, 978 (5th Cir.

2009) (citing Cervantes, 132 F.3d at 1110).

While James’ affidavit contains an eyewitness account, it lacks requisite

specificity. See Cervantes, 132 F.3d at 1110-11. It states that Franks filed a

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notice of appeal requesting appointed counsel in July 2004; however, it does not

differentiate between Franks’ above-described first and second notices of appeal.

Franks’ assertions are inconsistent with the bulk of his conduct otherwise:

he failed to show he attempted to obtain the relevant prior mail logs or inquire

about the status of his request for appointed counsel either before or after his

appeal was dismissed; he was able to retain counsel prior to entry of judgment;

he informed the district court that he was seeking another attorney; the volume

of his pro se filings during the period leading up to sentencing demonstrated

Franks’ proclivity to seek immediate action from the district court if a matter

was pending; the record shows Franks was silent before the district court from

22 September 2004 (when his appeal was dismissed for want of prosecution) to

29 July 2005, when the district court apparently first received his application to

proceed in forma pauperis.

The district court’s assessment of the evidence was not clearly erroneous;

accordingly, it did not abuse its discretion in denying Franks an evidentiary

hearing on his due-process claim. Franks’ claims are inconsistent with the bulk

of his conduct, and he offers no supporting specific facts. See Davis v. Butler, 825

F.2d 892, 894 (5th Cir. 1987) (stating requirements for evidentiary hearing in

context of a § 2254 petition); United States v. Orozco-Ramirez, 211 F.3d 862, 864

n.4 (5th Cir. 2000) (noting that, because of their similarity, § 2254 proceedings

are viewed relevant to § 2255 analysis). While Franks insists an evidentiary

hearing would allow him to find facts to support his allegations (e.g., the

testimony of other affiants, the mail log from Grayson County Jail), an

evidentiary hearing is not a “fishing expedition” for him to find support to

validate his allegations. Edwards, 442 F.3d at 268 n.10 (5th Cir. 2006).

III.

Therefore, in the light of the district court’s alternative ruling on the

merits, the judgment is AFFIRMED.

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