IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30411

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RICHARD A. HIGGINS,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:10-CV-4268

USDC No. 2:09-CR-402-1

Before REAVLEY, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

Richard A. Higgins, federal prisoner # 31322-034, appeals from the denial

of his 28 U.S.C. § 2255 motion, in which he argued that trial counsel was

ineffective for failing to file a notice of appeal when instructed to do so. The

district court assumed that counsel had failed to file a notice of appeal, but found

that Higgins could not demonstrate prejudice arising from this presumed failure,

as Higgins had waived his right to appeal.

United States Court of Appeals

Fifth Circuit

F I L E D

January 27, 2012

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.

Case: 11-30411 Document: 00511739109 Page: 1 Date Filed: 01/27/2012
No. 11-30411

To demonstrate ineffective assistance of counsel based on a claim that

counsel failed to file a notice of appeal, a defendant must show that counsel

performed deficiently and that a reasonable probability exists that, but for

counsel’s deficient conduct, the defendant would have timely appealed. Roe v.

Flores-Ortega, 528 U.S. 470, 476-77, 484, 486 (2000). Counsel’s performance is

deficient if counsel disregards his client’s wishes concerning filing an appeal. Id.

at 477-78. The defendant need not demonstrate that he would have been able

to raise a meritorious issue on appeal. Id. at 483-86. Instead, if the petitioner

demonstrates by a preponderance of the evidence that he ordered counsel to file

an appeal, prejudice will be presumed, and the petitioner will be able to file an

out-of-time appeal. United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007). 

The defendant need only show “that there is a reasonable probability that, but

for counsel’s failure, he would have timely appealed.” Id. at 265. “[T]he rule of

Flores-Ortega applies even in cases where a defendant has waived his right to

direct appeal and collateral review.” Id. at 266. 

The district court erred by basing the denial of § 2255 relief on Higgins’s

appeal waiver provision. See id. Additionally, Higgins alleged in his verified

§ 2255 motion that he directed counsel to file a notice of appeal and that counsel

did not do so. The district court did not hold an evidentiary hearing, and the

Government placed no evidence in the record indicating that Higgins did not

direct counsel to file a notice of appeal. The record before this court is silent as

to whether there was a reasonable probability that Higgins would have taken an

appeal but for counsel’s alleged failure to file a notice of appeal. See Tapp, 491

F.3d at 266. 

If the evidence does not “conclusively show” whether the petitioner

requested that counsel file an appeal, then the district court should hold an

evidentiary hearing on the issue. See id. The evidence does not conclusively

show whether Higgins directed counsel to file a notice of appeal. The district

court thus should hold an evidentiary hearing on remand.

VACATED AND REMANDED.

2

Case: 11-30411 Document: 00511739109 Page: 2 Date Filed: 01/27/2012