### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 c ertificate of appealability (COA) t o appeal t h e d i s t rict court’s dismissal of his 28 U.S.C. § 2255 motion challenging h i s guilty plea convi c ti o n a n d 2 3 5

- m o nth prison sentence for conspiracy to distribute and possess with i ntent 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. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Decem ber 19, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-31204 Document: 00512477706 Page: 1 Date Filed: 12/19/2013No. 12-31204

We dismissed C ooley’s direct appeal of his sentence for failure to prosecute based on errors that appellate counsel a cknowledged were his a l o n e a n d in no way caused by Cooley himself

. T h e 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). I f the district court denies r e lief on procedural grounds, a COA will n ot i ssue unless th e a p p licant shows “that j urists of reason w ould find it debatable whether the [ motion] s t a t e s a valid claim of the d enial of a constitutional r i ght 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 m erits, a COA will not issue unless the applicant s h o w s “that r easonable jurists would find the district court’s assessment o f the constitutional claims debatable or w r ong.” I d. Obtaining relief based on a claim of i neffective c o unsel requires a showing that counsel’s performance was deficient and that the deficiency prejudiced the defense. Strick l a n d v. Washington , 466 U.S. 668, 687 ( 1984). An attorney performs deficiently if his actions fall “b elow an objective standard of reasonableness.” I

d. a t 688. “The general rule announced in Strickland

. . . is modifi e d when the complained of p erformance results in the actual or constructive denial of any assistance o f appellate c ounsel.” Harris v. Day , 226 F.3d 361, 364 (5th C ir. 200 0 )

. “ I n s u ch a c a se, the petitioner n eed not demonstrate t he typical Strickland -type prejudice, b ecause prejudice is presumed.” I

d. This presumption applies e ven “i n c ases involving appeal waivers that a lso 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 r e m e d y if counsel has failed in his duty to perfect a r equested a ppeal. U nited States v. W

est , 240 F.3d
2 Case: 12-31204 Document: 00512477706 Page: 2 Date Filed: 12/19/2013No. 12-31204

456, 459 (5th Cir. 2001). Under this j udicial remedy, the district court must dismiss w ithout p rejudice a petitioner’s § 2255 claim of ineffective assistance of appellate counsel and r einstate the judgment of conviction, which w i l l r e start the time for appeal under F ederal Rule of Appellate Procedure 4(b)(1)(A). Id. at 459-60. The record is clear that, through no fault of h is own, an appellate brief was
never f iled in the appeal Cooley requested, and he was thus denied the effective assistance of appellate counsel and need not show prej u dice. See Harris , 226 F.3d at 3 64-65. Accordingly, we grant a COA in c onnection with Cooley’s claim of ineffective assistance of appellate counsel, VACATE the district court’s ruling

on t h a t c laim, and REMAND with instructions to dismiss without prejudice Cooley’s § 2255 claim of ineffective assistance of appellate c ounsel, reinstate the criminal judgment on the docket, and grant an out-of-time appeal.

3 Case: 12-31204 Document: 00512477706 Page: 3 Date Filed: 12/19/2013