*Pursuant to Local Rule 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-30247

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

BOBBI HOLLOMAN, also known as Bobbi Moseley,

also known as Bobbi Hoover,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Louisiana

(96-CV-345)

November 6, 1996

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

BACKGROUND

An indictment charged Bobbi Holloman and others with

conspiring to manufacture methamphetamine, and with distribution of

methamphetamine. Holloman pleaded guilty to a one-count
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superseding bill of information that charged her with attempted

possession with intent to distribute more than 100 grams of a

mixture or substance containing methamphetamine in violation of 21

U.S.C. §§ 841(a)(1) and 846. The district court sentenced Holloman

to 57 months imprisonment and five years supervised release. The

court advised Holloman of her right to appeal, to the appointment

of counsel, and to a copy of the transcripts. 

Approximately three months later, Holloman filed a pro se

notice of appeal, stating that her court-appointed counsel never

advised her that she had a right to appeal. This Court dismissed

the appeal for lack of jurisdiction but stated that Holloman could

seek an out-of-time appeal by filing a motion pursuant to 28 U.S.C.

§ 2255 in the district court. 

Through appointed counsel, Holloman filed the instant motion

for relief under § 2255, alleging that she had received ineffective

assistance at sentencing and on appeal. Holloman argued that trial

counsel failed to object to the use of the “d-methamphetamine”

standard for computing her base offense level and to request a

downward adjustment for her mitigating role in the offense.

Holloman also contended that her trial counsel did not advise her

of her right to appeal, the applicable time limits, or her right to

appointed counsel. Consequently, she argued that she was denied

her right to a direct appeal. 

In its answer, the Government argued that counsel was not

ineffective because there was no rational basis for counsel to have
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objected to the basis of the drug or on the basis of Holloman’s

role in the offense, an offense Holloman herself committed. The

Government further argued that Holloman had not alleged that she

had asked her attorney to file an appeal. Absent such an

allegation, the Government argued, the district court need not

consider whether an out-of-time appeal was appropriate. 

The district court determined that no evidentiary hearing was

required and dismissed the motion. The court determined that

Holloman’s contention that her counsel was ineffective for failing

to object to the basis of the drug was disingenuous and that her

contention regarding her role in the offense was precluded by this

court’s prior precedent. Finally, the court noted that Holloman

had not suggested or alleged that she had ever asked trial counsel

to file an appeal on her behalf. Because the court had advised

Holloman of her right to appeal her sentence and because she had

not alleged that she requested an appeal, the court concluded that

Holloman had waived her right of appeal and that counsel had not

been ineffective in failing to file the notice of appeal. 

Holloman filed a motion for reconsideration which included her

affidavit in which she attested that:

Upon completion of my sentencing hearing, I asked

my lawyer, John Simmons, “If there was any thing

else that could be done?” His reply, to me and my

husband (Larry Moseley), was, “No, that’s it.”

It was my belief, from this conversation, that he

meant that I had no other choice than to accept the

Court’s decision.”
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Mr. Simmons, my attorney, never counseled me as to

the fact that I could appeal.

The district court denied the motion for reconsideration,

noting that Holloman still had not indicated that she had asked

counsel to file an appeal on her behalf. 

Holloman timely appealed. 

OPINION

Holloman argues that her counsel failed to advise her of her

right to appeal, the time limits, or her right to appointed

counsel. She concedes that she “has never asserted that she

specifically asked that an appeal be filed on her behalf,” but she

contends that her trial counsel never counseled her as to the

process and procedures for an appeal. Holloman argues that as a

result of her trial counsel’s errors, she was denied the

opportunity to raise her claim about the type of methamphetamine

that should have been used in calculating her sentence. 

A criminal defendant has a constitutional right to effective

assistance of counsel in her first appeal as of right. See Evitts

v. Lucey, 469 U.S. 387, 393-95 (1985). The failure of counsel to

perfect an appeal upon request of his client may constitute

ineffective assistance of counsel. See United States v. Gipson,

985 F.2d 212, 215 (5th Cir. 1993). The standard Strickland v.

Washington ineffective-assistance-of-counsel analysis is not

performed when there has been actual or constructive complete
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denial of any assistance of appellate counsel. Sharp v. Puckett,

930 F.2d 450, 451-52 (5th Cir. 1991) (citing Penson v. Ohio, 488

U.S. 75 (1988)). 

"In the context of the loss of appellate rights, prejudice

occurs where a defendant relies upon his attorney's unprofessional

errors, resulting in the denial of his right to appeal." Gipson,

985 F.2d at 215. "If a petitioner can prove that the ineffective

assistance of counsel denied him the right to appeal, then he need

not further establish -- as a prerequisite to habeas relief -- that

he had some chance of success on appeal." Id. In such cases,

prejudice is presumed and neither the Strickland prejudice test nor

the harmless-error test is appropriate. Sharp, 930 F.2d at 452;

but cf. Gipson, 985 F.2d at 215-17 (applying a Strickland prejudice

analysis to the review of a case in which it was established that

the convicted defendant informed his retained counsel of his desire

to appeal and the attorney failed to perfect an appeal). 

An attorney’s role “is to provide information on how to appeal

and the opportunity to do so. . . . The Constitution requires that

‘the client be advised not only of his right to appeal, but also of

the procedure and time limits involved and of his right to

appointed counsel on appeal.’” United States v. Faubion, 19 F.3d

226, 231 (5th Cir. 1994). A defendant, therefore, is entitled to

relief if her court-appointed counsel failed to inform her properly

of her appellate rights, including her right to appeal, the
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procedure and time limits involved, and the right to appointed

counsel on appeal. Gipson, 985 F.2d at 216-17; Norris v.

Wainwright, 588 F.2d 130, 134-35 (5th Cir.), cert. denied, 444 U.S.

846 (1979). If the defendant has been informed of her right to

appeal by her attorney and does not make known to her attorney her

desire to pursue an appeal, she has waived her right to appeal, and

a claim of ineffective assistance of counsel will not lie. Gipson,

985 F.2d at 216.

A district court may deny a § 2255 motion without a hearing or

further proceedings "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). The

record in this case does not demonstrate conclusively that Holloman

is not entitled to relief. "[T]his Court's policy has been

strongly in favor of the position that a waiver will not be assumed

unless the facts clearly support such an assumption." See Chapman

v. United States, 469 F.2d 634, 637 (5th Cir. 1972) (defendant who

waited four years after the judgment of conviction to allege that

he had been denied his right to appeal entitled to an evidentiary

hearing). Holloman’s allegation that counsel failed either to

inform her of her appellate rights or to file a notice of appeal

was sufficient to trigger the district court’s obligation to hold

an evidentiary hearing. See Chapman, 469 F.2d at 636-37. We

vacate the judgment and remand for an evidentiary hearing to
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determine whether "there has been an actual or constructive

complete denial of any assistance of appellate counsel." See

Lombard v. Lynaugh, 868 F.2d 1475, 1480 (5th Cir. 1989); see

Bartholomew, 974 F.2d at 41. 

We pretermit consideration of Holloman’s remaining claims

pending a determination on remand whether Holloman is entitled to

an out-of-time-appeal. See Mack v. Smith, 659 F.2d 23, 26 (5th

Cir. 1981).

If Holloman successfully proves her claim on remand,

Holloman’s judgment of conviction should be reinstated on the

district court’s docket and the date from which the time for

Holloman to file a notice of appeal shall run shall be the date of

such reinstatement. See id. If the district court determines that

Holloman is not entitled to an out-of-time appeal, the court should

reinstate its judgment denying Holloman’s § 2255 motion. 

VACATED and REMANDED.