* 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that this opinion should not be published and is not precedent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

April 28, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-11051

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WALTER WAYNE MCMILLEN,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Northern District of Texas

USDC Nos. 3:02-CV-2078-G

3:01-CR-139-ALL-G 

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

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Walter Wayne McMillen (“McMillen”), federal prisoner #26819-

177, moves this court for a certificate of appealability (“COA”)

to appeal the district court’s denial of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct his sentence. Construing

his motion liberally, McMillen argues that the waiver in his plea

agreement did not bar his 28 U.S.C. § 2255 motion and that the

district court should have held an evidentiary hearing on his
No. 03-11051

-2-

claims that he would not have pleaded guilty but for his

counsel’s ineffectiveness and that his counsel was ineffective

for failing to file a notice of appeal. McMillen’s further

argument that the district court erred by failing to consider the

combined affect of his ineffective assistance of counsel claims

is refuted by the record. McMillen additionally states that all

of the claims he raised in the district court were meritorious,

but because he does not explain why his remaining claims were

meritorious, he has failed to adequately brief these claims and

they are deemed waived. See Yohey v. Collins, 985 F.2d 222, 224-

25 (5th Cir. 1993).

To obtain a COA, McMillen must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). As McMillen’s 28 U.S.C. § 2255 motion was denied

both on procedural grounds and on its merits, he “must

demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or

wrong” 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). 

The claims that McMillen raises in this court are

ineffective assistance of counsel claims. Although some

ineffective assistance of counsel claims may be waived, see

United States v. White, 307 F.3d 336, 343-44 (5th Cir. 2002), in

this case the waiver specifically excepted ineffective assistance
No. 03-11051

-3-

of counsel claims. Accordingly, McMillen’s waiver did not bar

these claims and McMillen has shown that the district court’s

procedural ruling was debatable or wrong. See Slack, 529 U.S. at

484.

The district court denied McMillen’s relevant ineffective

assistance of counsel claims without conducting an evidentiary

hearing because the affidavit of McMillen’s counsel contradicted

McMillen’s allegations, because it found that no evidence

supported McMillen’s claim that he had a viable public authority

defense, and because it found that any appeal McMillen could have

filed would have been meritless. McMillen’s affidavit, however,

set forth facts that, if true, showed that his counsel failed to

file a notice of appeal after McMillen requested that he do so,

that his counsel lied to him during plea negotiations, that he

was working as a confidential informant at the time of his

arrest, and that he asked his counsel to investigate and present

a public authority defense but that his counsel refused to do so.

A district court may deny a 28 U.S.C. § 2255 motion without

holding an evidentiary hearing “only if the motion, files, and

records of the case conclusively show that the prisoner is

entitled to no relief.” United States v. Bartholomew, 974 F.2d

39, 41 (5th Cir. 1992). We review a district court’s denial of a

28 U.S.C. § 2255 motion without holding an evidentiary hearing

for an abuse of discretion. United States v. Cervantes, 132 F.3d

1106, 1110 (5th Cir. 1998). “[C]ontested fact issues [in a 28
No. 03-11051

-4-

U.S.C. § 2255 case] ordinarily may not be decided on affidavits

alone, unless the affidavits are supported by other evidence in

the record.” United States v. Hughes, 635 F.2d 449, 451 (5th

Cir. Unit B 1981). 

The record does not conclusively show that McMillen is not

entitled to relief on his ineffective assistance of counsel

claims. See Hughes, 635 F.2d at 451. McMillen presented

facially valid claims that he would not have pleaded guilty but

for his counsel’s ineffectiveness and that his counsel was

ineffective for failing to file a notice of appeal. See Hill v.

Lockhart, 474 U.S. 52, 59 (1985); Strickland v. Washington, 466

U.S. 668, 688-92 (1984); Roe v. Flores-Ortega, 528 U.S. 470, 477

(2000). The district court’s finding that any direct appeal

filed by McMillen would have been without merit does not change

this analysis because the failure to file a notice of appeal upon

request is ineffective assistance of counsel without a showing

that the appeal would have merit. See Flores-Ortega, 528 U.S. at

477. Accordingly, we GRANT McMillen a COA on his claims that he

would not have pleaded guilty but for his counsel’s

ineffectiveness and that his counsel was ineffective for failing

to file a notice of appeal, VACATE the district court’s denial of

28 U.S.C. § 2255 relief, and REMAND to the district court for an

evidentiary hearing regarding these issues. See Dickinson v.

Wainwright, 626 F.2d 1184, 1186 (5th Cir. 1980). COA is DENIED

on any remaining issues.

COA GRANTED IN PART, DENIED IN PART; VACATED AND REMANDED.