* 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should not be published and is not precedent except under the limited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. 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 of his

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 of cocaine 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 plea 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

Clerk
No. 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 of appeal, 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 to a magistrate judge (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 to file 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 of appeal, 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

of counsel based on his attorney’s failure to file a notice of appeal.1 The FEDERAL

RULES OF CIVIL PROCEDURE apply to amendments and supplements of motions

brought under 28 U.S.C. § 2255. See 28 U.S.C. § 2242; RULES GOVERNING

SECTION 2255 PROCEEDINGS, Rule 12. Under FED. R. CIV. P. 15(a), a plaintiff is

allowed, as a matter of right, 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). FED.
No. 06-30395

3

R. CIV.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 allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of amendment, etc.’ is

considered an abuse of discretion.” United States ex rel. Adrian v. Regents of the

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 reasons justifying 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 was a 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 of an 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.” Flores-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 of appeal 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. Id. 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.” Id. at 478. For the prejudice prong of

the ineffective assistance claim,theFlores-Ortega Court held thatthe defendant

must demonstrate “that, but for counsel’s deficient performance, he would have

appealed.” Id. 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, if his 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 of ineffective assistance of counsel without any of the accepted reasons

justifying such a denial. See FED. R. CIV.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.