* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-50066

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MIKE MARTINEZ,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Texas

(A-94-CA-705)

(June 13, 1995)

Before KING, JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:*

BACKGROUND

Mike G. Martinez pleaded guilty pursuant to a plea agreement

to distribution of heroin in violation of 21 U.S.C. § 841(a)(1).

The district court sentenced Martinez to 210 months of

imprisonment, five years of supervised release and a $25,000 fine.
2

Through his retained counsel, Martinez timely filed his notice of

appeal, but the appeal was dismissed for want of prosecution for

failure to pay the docketing fee. 

Martinez filed this pro se 28 U.S.C. § 2255 motion on the

basis of ineffective assistance of counsel. Martinez also

requested an evidentiary hearing. The district court adopted the

magistrate judge's recommendation and dismissed Martinez's motion,

finding that he waived his right to appeal in his plea agreement

and, thus, did not receive ineffective assistance. 

OPINION

Martinez argues that he was denied effective assistance of

counsel on appeal for counsel's failure to perfect and present an

appeal. The government contends that Martinez did not receive

ineffective assistance because he waived his right to a direct

appeal in his plea agreement. 

A defendant may waive his right to direct appeal and his

rights under § 2255 as part of a plea agreement. United States v.

Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). The district court is

responsible for insuring that "the defendant fully understands

[his] right to appeal and the consequences of waiving that right."

United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992), cert.

denied, 113 S. Ct. 2457 (1993). "To be valid, a defendant's waiver

of his right to appeal must be informed and voluntary. A defendant

must know that he had a `right to appeal his sentence and that he

was giving up that right.'" United States v. Portillo, 18 F.3d

290, 292-93 (5th Cir. 1994), cert. denied, 115 S. Ct. 244
3

(1994)(quoting United States v. Melancon, 972 F.2d 566, 567 (5th

Cir. 1992)). Martinez's counsel cannot be considered deficient for

failing to perfect an appeal, the right to which was knowingly and

voluntarily waived in the process of plea bargaining. See Wilkes,

20 F.3d at 653. 

In his plea agreement, Martinez waived "his right to appeal

the sentence or to contest it in any post-conviction proceeding"

except in the event of upward departure in sentencing. Martinez's

plea agreement indicates that he knowingly waived his right to

appeal. 

Martinez does not contest the validity of the plea agreement.

Martinez does not argue that his counsel was ineffective for

negotiating the plea agreement generally or the waiver of appeal

provision specifically. See Wilkes, 20 F.3d at 653 (postconviction relief waiver may not always apply to a collateral

attack based on ineffective assistance of counsel). Martinez

offered no evidence that he did not understand the consequences of

his plea. Martinez bases his argument on the sole issue of

ineffective assistance of counsel for failure to perfect his

appeal. Additionally, Martinez does not indicate that he intended

to appeal anything other than sentencing issues, for which the

right to appeal was not waived. 

Because he does not contest its validity, Martinez is bound by

his plea agreement. See Portillo, 18 F.3d at 292-93. Counsel

cannot be considered ineffective for failing to perfect a waived

right. Wilkes, 20 F.3d at 653. 
4

Martinez advances his ineffective-assistance-of-counsel

argument under the traditional Strickland analysis in which he must

show: (1) that his counsel's performance was deficient in that it

fell below an objective standard of reasonableness; and (2) that

the deficient performance prejudiced his defense. See Strickland

v. Washington, 466 U.S. 668, 687-94 (1984). Under this analysis,

when a defendant is deprived of an appeal due to counsel's

ineffective assistance, he need not show prejudice. See Sharp v.

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

Ohio, 488 U.S. 75 (1988)). Martinez argues that he need not show

prejudice because his counsel's deficient performance deprived him

of an appeal. However, under Wilkes, when a defendant makes a

claim of ineffective assistance of counsel on appeal, yet

previously waived his right to appeal, the court must reach the

waiver issue before the ineffective-assistance issue to determine

if relief is barred. See Wilkes, 20 F.3d at 653. If the waiver is

determined to be valid, "[c]ounsel is not deficient for, and

prejudice does not issue from, failure to raise a legally meritless

claim." Id. (citation omitted). Martinez's waiver was valid, thus

he cannot show ineffective assistance.

Martinez also argues that the district erred in failing to

provide him an evidentiary hearing on his § 2255 motion. 

A § 2255 motion "can be denied without 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). 
wjl\opin\95-50066.opn

hrd 5

The district court accepted Martinez's guilty plea after a

Rule 11 hearing. The court reviewed the merits of Martinez's §

2255 motion and found that he knowingly and voluntarily waived his

right to appeal. The record conclusively shows that Martinez

entered a plea agreement in which he knowingly waived his right to

appeal. Martinez is entitled to no relief. See Wilkes, 20 F.3d at

653; see also Portillo, 18 F.3d at 292-93.

The district court did not err in failing to provide an

evidentiary hearing. 

Martinez finally argues that the district court erred in

focusing on the waiver of his right to appeal in its denial of his

§ 2255 motion instead of his constitutional claim of ineffective

assistance of counsel. 

The government raised the waiver-of-appeal issue in its response to Martinez's motion. The issue of waiver of appeal is

relevant to the court's analysis of a § 2255 motion, even when the

defendant presents an ineffective-assistance-of-counsel claim. See

Wilkes, 20 F.3d at 653. 

The district court did not err in denying Martinez's § 2255

motion based on waiver of appeal. 

AFFIRMED.