* Pursuant to 5 TH C IR
. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR
. R. 47.5.4. 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30395 Summary Calendar

UNITED STATES OF AMERICA Plaintiff-Appellee

v. TOMMY NABOR, also known as Sealed Defendant 1 Defendant-Appellant
Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:05-CV-1285 USDC No. 3:04-CR-148
Before WIENER, GARZA, and BENAVIDES, Circuit Judges. PER CURIAM: * Tommy Nabor, Jr., federal prisoner # 04263-095, appeals the denial ofhis 28 U.S.C. § 2255 motion to correct his sentence imposed when he pleaded guilty to one count of distribution of powder cocaine and two counts of distribution of five grams or more ofcocaine base. Within ten days after the entry of judgment of conviction, Nabor filed his § 2255 motion pro se, alleging that he did not voluntarily and knowingly enter his pl ea and that his attorney had rendered United States Court of Appeals

Fifth Circuit 

### F I L E D November 30, 2007 Charles R. Fulbruge III ClerkNo. 06-30395

1 Nabor did not seek a COA to appeal the district court’s refusal to treat his § 2255 motion as a notice of appeal. 2 ineffective assistance. Nabor asserts that he filed this § 2255 motion thinking it was a notice ofappeal, and while the motion is captioned and structured as a § 2255 motion, Nabor states in the motion itself that the result of the direct appeal he filed in Middle District of Louisiana is “unknown (current application).” After the district court assigned the motion toa magistratejudge (MJ), the Government responded, and the MJ’s report recommended that Nabor’s motion be denied on the merits. Before the district court acted on the MJ’s report and recommendation, Nabor filed a motion for leave to amend, asking the court to treat his § 2255 motion as a notice of appeal or, in the alternative, to allow him to amend his § 2255 motion to add an allegation that his attorney provided ineffective assistance by failing tofile an appeal despite Nabor’s request that he do so. The district court denied Nabor leave to amend in either manner without explanation. The district court then overruled Nabor’s objections to the MJ’s report, adopted the MJ’s report and recommendation, and denied Nabor’s § 2255 motion. After Nabor timely filed a notice ofappeal, we granted Nabor a COA with respect to whether the district court abused its discretion in refusing to grant Nabor leave to amend his § 2255 motion to add a claim for ineffective assistance ofcounsel based on his attorney’s failure tofile a notice ofappeal. 1 The F E DERAL R ULES OF C IVIL PROCEDURE apply to amendments and supplements of motions brought under 28 U.S.C. § 2255. See 28 U.S.C. § 2242; R ULES G OVERNING S ECTION 2255 PROCEEDINGS, Rule 12. Under F E D
. R. C IV
. P. 15(a), a plaintiff is allowed, asa matter ofright, one amendment before any responsive pleading has been filed, but subsequent amendments are permitted only with leave of court. Id.; Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir. 1981). F E D
.No. 06-30395

3 R. C IV
. P. 15 instructs that leave to amend “shall be freely given when justice so requires.” Nabor argues that the district court abused its discretion in refusing to allow him to amend his pleadings to add a claim that his attorney rendered ineffective assistance by failing to file a notice of appeal as instructed. The Government correctly observes that appellate review of the decision to grant or deny leave is limited to determining whether the trial court abused its discretion. See Dussouy, 660 F.2d at 597. We have held that “outright refusal to grant leave to amend without a justification such as ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously all o wed, undue prejudice totheopposing party by virtue of allowance of the amendment, futility of amendment, etc.’ is considered an abuse ofdiscretion.” U nited States ex rel. Adrian v. Regents ofthe Univ. of Cal., 363 F.3d 398, 403 (5th Cir. 2004) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Here, the district court did not provide any reasons explaining why it denied Nabor leave to amend his § 2255 motion, and nothing in the record indicates that anything like the accepted reasonsjustifying such a denial were present in Nabor’s case. Although Nabor did not file his motion for leave to amend until after the Government filed its response and the MJ issued a recommendation, the nature of the amendment Nabor sought would not have prejudiced the Government. In addition, Nabor’s good faith is supported by his consistent statements that he believed his § 2255 motion wasa direct appeal and by his request in his motion for leave that his § 2255 motion be treated as a direct appeal. In fact, Nabor indicated on the face of his § 2255 motion that he was attempting to file a direct appeal through that vehicle. The Government argues that the district court’s denial of leave to amend should be upheld because Nabor’s ineffective assistance claim was futile. In response, Nabor contends that his attorney’s failure to file a notice of appeal constitutes ineffective assistance of counsel per se.No. 06-30395

4 Neither party is entirely correct. In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court held that the failure ofan attorney to file a notice of appeal only requires reinstatement of appellate proceedings if the defendant shows “(1) that counsel’s representation ‘fell below an objective standard of reasonableness,’

. . . and (2) that counsel’s deficient performance prejudiced the defendant.” F lores-Ortega, 528 U.S. at 476-77 (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). The Court refused to hold that the failure to file
a notice ofappeal is unreasonable per se, requiring instead that courts evaluate the reasonableness of the attorney’s conduct in light of the specific facts of the
case. I d. at 477-81. The Court did instruct, however, that “[i]f counsel has consulted with the defendant,” then “[c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal.” I d. at 478. For the prejudice prong of the ineffectiveassistanceclaim, the Flores-Ortega Court held that the defendant must demonstrate “that, but for counsel’s deficient performance, he would have appealed.” I d. at 484. Because Nabor specifically alleged in his motion to amend below that his attorney failed to file a notice of appeal despite being instructed to do so and that, ifhis attorney had done so, Nabor’s mislabelled § 2255 motion filed within 10 days after his judgment of conviction would have been properly filed as a notice of appeal, Nabor set forth a prima facie claim of ineffective assistance of counsel. See Flores-Ortega, 528 U.S. at 476-84. The district court abused its discretion in refusing to allow Nabor to add the claim ofineffective assistance ofcounsel without any ofthe accepted reasons justifying such a denial. See F ED
. R. C IV
. P. 15(a); Adrian, 363 F.3d at 403

. The judgment below is vacated and the case is remanded with instructions that the district court grant Nabor leave to amend his pleadings to add his claim that his counsel was ineffective in failing to perfect the appeal as Nabor instructed. VACATED AND REMANDED.