*Judge, U.S. Court of International Trade, sitting by

designation.

 

**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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-60204

_____________________

EDGAR RAY DICKEY,

Plaintiff-Appellee,

versus

WALTER BOOKER, Superintendent of

Mississippi State Penitentiary,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Mississippi, Jackson

USDC No. 3:95-CV-881-WS

_________________________________________________________________

December 21, 2000

Before JOLLY and DAVIS, Circuit Judges, and RESTANI, Judge.*

PER CURIAM:**

The state of Mississippi appeals from the district court’s

grant of habeas under 28 U.S.C. § 2254 to Edgar Ray Dickey, a

prisoner who was not allowed an out-of-time appeal, despite the

failure of his attorney to inform him of the right to proceed in

forma pauperis. We find that the district court properly

determined that Dickey suffered a constitutional violation and was
2

entitled to habeas relief. Because the constitutional violation

only concerns Dickey’s right to appeal, however, and does not

immediately place his conviction in doubt, Dickey’s remedy is

limited to an out-of-time appeal in the Mississippi state courts,

conditioned on Dickey’s notification of the court of his desire to

appeal. 

I

Edgar Ray Dickey was indicted for murder in November of 1990

in the Circuit Court of Copiah County. After his first trial

resulted in a mistrial, he was convicted of the lesser charge of

manslaughter in April of 1991. On May 2, 1991, he was sentenced to

a term of twenty years. According to Mississippi law, Dickey had

thirty days from the date of his sentencing, or until June 1, 1991,

to file a notice of appeal. Dickey did not file a timely appeal.

Dickey first attempted to file an out-of-time appeal in

September 1991, but his petition was denied. After both an appeal

and a habeas petition, Dickey again petitioned the Copiah Circuit

Court for permission to file an out-of-time appeal in 1993. He

argued that he had been denied the right to appeal because of

ineffective assistance of counsel. He claimed that he had asked

his attorney, William Ferguson, to appeal the conviction and was

under the impression that the appeal would be perfected. The court

denied Dickey’s request for an out-of-time appeal after an
3

evidentiary hearing in which it reviewed a series of letters from

Ferguson. The letters set out the amount of money requested by

Ferguson to proceed with the appeal, but did not mention appealing

in forma pauperis until after the period in which to file a timely

appeal had run. The court found that the letters showed that

Dickey was aware of the importance of filing an appeal, and that

there were no grounds for an out-of-time appeal. The court also

denied a request for reconsideration. 

On appeal to the Mississippi Supreme Court, Dickey argued that

his counsel was ineffective because his attorney had told him only

of the costs of appealing, and had never told him of the option of

appealing in forma pauperis. The Mississippi Supreme Court

affirmed the trial court, ruling that Dickey had failed to show

grounds for an out-of-time appeal. The court found that no

agreement regarding an appeal had been reached between Dickey and

his attorney, and thus Ferguson had not rendered ineffective

assistance of counsel by failing to file a notice of appeal.

Dickey then sought federal habeas relief under 28 U.S.C.

§ 2254. The magistrate judge ordered an evidentiary hearing and

appointed counsel for Dickey. Both parties agreed, however, that

the matter could be resolved with the submission of affidavits from

Dickey and Ferguson, without an additional hearing. The magistrate

judge found that Dickey’s counsel rendered constitutionally
 

1 The magistrate judge, in accordance with Martin v. Texas,

737 F.2d 460, 462 (5th Cir. 1994), noted that “[t]he Fifth Circuit

has stated in no uncertain terms that the failure on counsel’s part

to inform a defendant of his right to appointed counsel on appeal

if indigent constitutes ineffective assistance and requires that

habeas relief be granted.” The parties do not contest this point

on appeal. 

4

ineffective assistance by failing to inform Dickey of his right to

proceed in forma pauperis.1 The magistrate judge therefore

recommended releasing Dickey from prison unless the state court

allowed Dickey to file an out-of-time appeal and proceed in forma

pauperis with appointed counsel within thirty days. 

The district court adopted the magistrate judge’s report on

March 17, 1999. The state filed a notice of appeal on March 23,

1999, as well as a motion to stay order pending appeal. The motion

to stay was terminated as moot on March 20, 2000, after Dickey was

released from prison on completion of his sentence. The state then

filed a motion to dismiss the case for lack of jurisdiction, or for

mootness, but the district court ruled that it lacked jurisdiction

to rule on the state’s motion after an appeal was filed.

At the time of this appeal, Dickey’s whereabouts were unknown

by both the state of Mississippi and Dickey’s counsel. Dickey’s

counsel has continued to represent him, and advised the court at

oral argument that she thought he could be contacted. 

 II
5

Dickey completed his sentence and was released from prison on

November 18, 1999. The state argues that Dickey’s release from

prison moots this appeal, because the relief sought in the habeas

petition, release from confinement, has been achieved. Even though

Dickey was released prior to this appeal, however, his appeal

satisfies the case or controversy requirement if there exists “some

concrete and continuing injury other than the now ended

incarceration or parole.” Spencer v. Kemna, 523 U.S. 1, 7 (1998).

The Supreme Court presumes that “a wrongful criminal conviction has

continuing collateral consequences.” Id. at 8. Dickey asserts

that the presumption of collateral consequences applies to him

because he is contesting his criminal conviction through his right

to appeal. As a convicted felon, Dickey is barred from a variety

of activities. He cannot hold certain offices, engage in

particular businesses or professions, possess firearms, vote or

serve as a juror in Mississippi. Assuming he was not allowed to

appeal due to ineffective assistance of counsel, he suffers the

consequences of a criminal conviction, and his appeal is therefore

not moot.

III

On appeal, the state does not contest that Dickey would be

entitled to habeas if his attorney failed to inform him of the

right to appeal in forma pauperis. Instead, the state argues that
 

2Dickey’s habeas petition was filed before the effective date

of the AEDPA, and thus must be considered under pre-AEDPA law.

Lindh v. Murphy, 521 U.S. 320, 336 (1997).

6

the district court failed to give the Mississippi Supreme Court’s

factual findings a presumption of correctness as required under 28

U.S.C. § 2254, and that the district court improperly weighted

Dickey’s affidavit over the affidavit of his former attorney. 

We review the district court’s findings of fact for clear

error and its rulings on issues of law de novo. Little v. Johnson,

162 F.3d 855, 859 (5th Cir. 1998). A finding of fact is clearly

erroneous when the appellate court is left with the firm and

definite conviction that a mistake has been committed, even if

there is enough evidence to support the district court’s

determination. Meanes v. Johnson, 138 F.3d 1007, 1010 (5th Cir.

1998). Under the pre-AEDPA version of § 2254,2 federal courts must

give state courts’ findings of fact a presumption of correctness

unless enumerated exceptions apply, such as a failure to resolve

the merits of the factual dispute in the state court hearing, or a

failure to adequately develop the material facts at the state court

hearing. See 28 U.S.C. § 2254(d)(1)&(3)(pre-AEDPA). 

The state argues that the district court erred in not giving

a presumption of correctness to the Mississippi Supreme Court’s

findings that there was a lack of evidence to support the motion

for an out-of-time appeal, and that Dickey’s attorney’s performance
7

was not deficient. Although, under the pre-AEDPA law, the ultimate

conclusion on ineffective assistance of counsel is not entitled to

deference in federal court, the state court’s subsidiary findings

of fact and credibility are entitled to a presumption of

correctness. Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999).

Dickey argues, and the magistrate judge found, however, that

the presumption does not apply because the Mississippi court never

addressed the factual question of whether Dickey was informed of

his right to appeal in forma pauperis. Thus, the presumption of

correctness does not apply because the “merits of the factual

dispute were not resolved in the State court hearing.” 28 U.S.C.

§ 2254(d)(1)(pre-AEDPA). We agree. The state court determination

does not seem to have resolved the merits of the factual dispute or

adequately developed the material facts with respect to the failure

to inform Dickey of the right to appeal in forma pauperis. Because

there was no state court finding on the issue, the district court

did not err in failing to apply a presumption of correctness. 

The district court also did not err in its evaluation of the

affidavits of Dickey and Ferguson. Dickey’s affidavit stated that

he was not informed of his right to appeal in forma pauperis before

the appeal’s period had run. Ferguson’s affidavit stated that he

did not remember whether he had informed Dickey of his rights, but

that his usual practice was to inform clients of the option of
8

appealing in forma pauperis. Although the state contends that one

statement in Dickey’s affidavit is untrue, and that Ferguson is a

more credible affiant, neither of these contentions affect the core

of the magistrate judge’s ruling: Ferguson does not remember

informing Dickey of his right to appeal in forma pauperis. Thus,

the district court’s finding that Dickey was not informed of his

right to appeal in forma pauperis is not clearly erroneous.

III

Although it seems clear that Dickey was deprived of his

constitutional right to appeal by not being informed of the

opportunity to appeal in forma pauperis, the appropriate remedy is

less obvious. The constitutional right that was violated, the

right to contest the conviction on appeal, is not a direct

challenge to the validity of the conviction. Thus, the remedy

should be limited to the grant of an out-of-time appeal in the

Mississippi state courts. 

Furthermore, Dickey was released from prison, and his

whereabouts are currently unknown. Despite the collateral

consequences of his criminal conviction, Dickey has not directly

expressed an interest in appealing that conviction after his

release from prison. To ensure that he is still interested in an

appeal, our granting of an out-of-time appeal is conditioned on

Dickey’s notification of this court, in writing and personally
9

executed, that he wishes to exercise his right of appeal. This

notification must be filed with the clerk of our court on or before

thirty days after the issuance of this opinion. If Dickey does

pursue an appeal, the appeal must be filed in the state courts of

Mississippi within ninety days of the issuance of this opinion. No

extensions on these time limits will be granted. If Dickey fails

to meet any of these time limits, the district court is directed to

dismiss his federal habeas petition with prejudice. 

IV

Because the case is not moot, and because the district court

did not err in determining that Dickey suffered a constitutional

violation entitling him to habeas relief, we conditionally AFFIRM

the district court’s order requiring that Dickey be afforded an

out-of-time appeal in the Mississippi state courts. This relief,

however, is conditioned on Dickey’s notification of the clerk of

this court within thirty days, and his appeal in the Mississippi

court within ninety days of this opinion, as we have noted above.

AFFIRMED CONDITIONALLY.