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this opinion should not be published and is not precedent except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

United States Court of Appeals

Fifth Circuit

FILED

February 3, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-10545

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL RAY HECKLER,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:01-CR-81-1-C

USDC No. 1:03-CV-155-C

--------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

Daniel Ray Heckler appeals the denial of his 28 U.S.C. 

§ 2255 motion in which he challenged his conviction and sentence

after pleading guilty to conspiracy to commit odometer fraud and

interstate transportation of fraudulent securities. A

certificate of appealability was granted on the issue whether

Heckler’s counsel was ineffective for failing to file a notice of

appeal. Heckler argues that he should be granted an out-of-time
No. 04-10545

-2-

appeal because he expressly asked counsel to file a notice of

appeal and counsel failed to do so.

To demonstrate ineffective assistance of counsel based on a

claim that counsel failed to file a notice of appeal, a defendant

must show that the failure to file fell below an objective

standard of reasonableness and that it prejudiced the defendant. 

See Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000). Failing to

file a notice when requested to do so can constitute deficient

performance. Id. at 477-78. As to prejudice, the defendant need

not demonstrate that he would have been able to raise meritorious

issues on appeal. Id. at 486. Rather, he must demonstrate only

that there is a reasonable probability that, but for counsel’s

failure, he would have appealed. Id.

 The record establishes that Heckler lost his right to appeal

because his notice of appeal was untimely. Heckler’s pro se

notice of appeal demonstrates that he wanted to appeal. The

affidavit that Heckler filed to counter the Government’s motion

to dismiss his direct appeal does not address whether he

expressly told counsel that he wished to appeal. In the

affidavit that Heckler submitted with the instant motion, he

attested under penalty of perjury that after he received his

sentence he immediately told counsel that he wanted to appeal. 

Contrary to the Government’s argument, Heckler’s two affidavits

are not contradictory inasmuch as he could have told counsel of

his desire to appeal and, after not being able to contact
No. 04-10545

-3-

counsel, could have also attempted to file his own notice of

appeal via his codefendant. 

A district court may deny a § 2255 motion without conducting

a hearing 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 does not conclusively show that Heckler is entitled to

no relief on this claim. Contested factual issues may not be

decided on the basis of affidavits alone unless the affidavits

are supported by other evidence in the record. United States v.

Hughes, 635 F.2d 449, 451 (5th Cir. 1981). Given that the

Government contests Heckler’s claim, the denial of Heckler’s 28

U.S.C. § 2255 motion is vacated and the case is remanded for an

evidentiary hearing on Heckler’s claim that he instructed counsel

to file a notice of appeal.

VACATED and REMANDED.