IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-31204

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAMES COOLEY, also known as Boo-Boo,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:10-CV-1583

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.

PER CURIAM:*

James Cooley has applied for a certificate of appealability (COA) to appeal

the district court’s dismissal of his 28 U.S.C. § 2255 motion challenging his

guilty plea conviction and 235-month prison sentence for conspiracy to distribute

and possess with intent to distribute 500 grams or more of a mixture or

substance containing a detectable amount of cocaine. Cooley asserts that he is

entitled to a COA on his claim of ineffective assistance of appellate counsel.

United States Court of Appeals

Fifth Circuit

F I L E D

December 19, 2013

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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No. 12-31204

We dismissed Cooley’s direct appeal of his sentence for failure to prosecute

based on errors that appellate counsel acknowledged were his alone and in no

way caused by Cooley himself. The district court believed it could award no

relief on the claim because the clerk of this court had denied Cooley’s motions to

reinstate the direct appeal. The district court denied Cooley a COA.

A COA will issue if Cooley makes “a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S.

322, 336 (2003). If the district court denies relief on procedural grounds, a COA

will not issue unless the applicant 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). If the district court denies relief on the merits, a COA will

not issue unless the applicant shows “that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.” Id.

Obtaining relief based on a claim of ineffective counsel requires a showing

that counsel’s performance was deficient and that the deficiency prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney

performs deficiently if his actions fall “below an objective standard of

reasonableness.” Id. at 688. “The general rule announced in Strickland . . . is

modified when the complained of performance results in the actual or

constructive denial of any assistance of appellate counsel.” Harris v. Day, 226

F.3d 361, 364 (5th Cir. 2000). “In such a case, the petitioner need not

demonstrate the typical Strickland-type prejudice, because prejudice is

presumed.” Id. This presumption applies even “in cases involving appeal

waivers that also include[ ] a waiver of collateral review.” United States v. Tapp,

491 F.3d 263, 265 (5th Cir. 2007).

Granting an out-of-time appeal is a permissible remedy if counsel has

failed in his duty to perfect a requested appeal. United States v. West, 240 F.3d

2

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No. 12-31204

456, 459 (5th Cir. 2001). Under this judicial remedy, the district court must

dismiss without prejudice a petitioner’s § 2255 claim of ineffective assistance of

appellate counsel and reinstate the judgment of conviction, which will restart

the time for appeal under Federal Rule of Appellate Procedure 4(b)(1)(A). Id. at

459-60.

The record is clear that, through no fault of his own, an appellate brief was

never filed in the appeal Cooley requested, and he was thus denied the effective

assistance of appellate counsel and need not show prejudice. See Harris, 226

F.3d at 364-65. Accordingly, we grant a COA in connection with Cooley’s claim

of ineffective assistance of appellate counsel, VACATE the district court’s ruling

on that claim, and REMAND with instructions to dismiss without prejudice

Cooley’s § 2255 claim of ineffective assistance of appellate counsel, reinstate the

criminal judgment on the docket, and grant an out-of-time appeal.

3

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