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 prejudic e ari s in g f ro m thi s p r e s u m e d failure, as Higgins had waived his right to appeal. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Janu ary27 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-30411 Document: 00511739109 Page: 1 Date Filed: 01/27/2012No. 11-30411

To demonstrate ineffective assistance of c o u n s el based on a claim that counsel failed to file a notice of appeal, a d e f e n d a nt m ust show that counsel performed deficiently and th a t a reasonable probability exists that, but for counsel’s deficient conduc t , 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 hi s ri gh t 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 di d n o t do so. The district court did not hold an evidentiary hearing, and th e 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 p e t i t i o ner request e d t h a t counsel file an appeal, then the district court should hold an evidentiary hearing on the issue. See id

. Th e evidence does not conclusively sho w wh e t h er 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