1 28 U.S.C. § 2255, the federal counterpart to habeas corpus review of state court convictions,

provides that a federal prisoner may move the sentencing court to vacate, set aside, or correct the

sentence as being in violation of federal Constitutional or statutory law.

2 Mr. Vasquez was convicted of possession with the intent to distribute approximately 567 kg

of marijuana in violation of 21 U.S.C. § 841. United States Court of Appeals,

Fifth Circuit.

No. 92-7121.

UNITED STATES, Plaintiff-Appellee,

v.

Victoriano VASQUEZ, Jr., Defendant-Appellant.

Nov. 16, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before JOHNSON, WIENER, and DeMOSS, Circuit Judges.

JOHNSON, Circuit Judge:

This appeal follows the granting of the government's summary judgment motion dismissing

the section 2255 1 claims of Victoriano Vasquez, Jr. ("Vasquez"). The district court grant ed this

motion after adopting the findings of the Magistrate Judge who had reached his conclusions after an

evid ent iary hearing conducted in the absence of appointed counsel for Vasquez. However, the

Magistrate Judge err ed when he failed to appoint counsel to represent Vasquez at the evidentiary

hearing. Thus the dismissal of petit io ner's section 2255 motion is hereby reversed and this case is

remanded to the district court for a proper hearing with appointed counsel.

BACKGROUND

Mr. Vasquez was arrested at a permanent border checkpoint when a search of the truck he

was driving revealed approximately 567 kg of marijuana. After being convicted by a jury, 2 Vasquez

was sent enced by the judge to ninety-seven months of imprisonment followed by five years o f

superv ised release. Vasquez did not file a notice of appeal within ten days as required by

Fed.R.App.P. 4(b).Some time later, Vasquez initiated habeas corpus proceedings under 28 U.S.C. § 2255. In

his pro se petition, he alleged that 1) he was denied his right to a direct appeal, 2) his counsel was

ineffective, and 3) his conviction was based on illegally obtained evidence. He was granted i n forma

pauperis status and the Magistrate Judge to whom the case was assigned ordered that an evidentiary

hearing be held.

No counsel was appointed to represent Vasque z at the hearing, however. Instead, Mr.

Vasquez was me rely put on the stand and interrogated by the Judge and the Prosecutor. Shortly

thereafter, the Magistrate Judge issued a Memorandum and Recommendation of his findings. The

district court adopted these findings and granted summary judgment for the government dismissing

Vasquez's section 2255 action. Vasquez timely appeals that dismissal.

DISCUSSION

The crucial issue in this appeal is whether Vasquez was entitled to appointed counsel at the

evidentiary hear ing held pursuant to his section 2255 motion. No such right flows from the

Constitution. P ennsylvania v. Finley, 481 U.S. 551, 555 , 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539

(1987) (No Sixth Amendment right to appointed counsel extends to prisoners collaterally attacking

their convictions). However, there is a statutory right to appointed counsel in a section 2255

proceeding under Rule 8, 28 U.S.C. § 2255, if an evidentiary hearing is required.

Under section (a) of that rule, the section 225 5 judge must decide whether a hearing is

required to determine the merits of t he applicat ion. If so, section (c) of Rule 8 mandates that the

judge shall appoint counsel for an indigent defendant. Lamb v. Estelle, 667 F.2d 492, 496-97 (5th

Cir.1982).

The provisions of this rule are mandatory and clear. If the court holds an evidentiary hearing,

counsel must be appointed for an indigent defendant. A lford v. United States, 709 F.2d 418, 423 (5th

Cir.1983). In the present case, Mr. Vasquez qualified as an indigent and an evidentiary hearing was

ordered. However, no counsel was appointed. This failure necessitates a reversal. S ee Lamb, 667

F.2d at 497 (5th Cir.1982).

The government attem

pts to escape the force of these provisions by several arguments, none3 Mr. Vasquez failed to verify his pleadings as required under Rule 2(c), 28 U.S.C. § 2255 even

after the Magistrate Judge specifically ordered him to replead under oath. Thus, the government

argues that this forum was generously granted to afford Mr. Vasquez a final opportunity to

develop his claim under oath. of which have any merit. The first of these arguments reads far too much into the word "required"

as used in Rule 8(a) and (c). In pertinent part, this Rule is worded as follows:

(a) Determination by court. If the motion has not been dismissed at a previous stage in the

proceeding, the judge, after the answer is filed and any transcripts or records of prior court

actions in the matter are in his possession, shall, upon a review of those proceedings and of

the expanded record, if any, determine whether an evidentiary hearin g is required. If it

appears that an evidentiary hearing is not required, the judge shall make such disposition of

the motion as justice dictates.

(c) Appointment of counsel; time for hearing. If an evidentiary hearing is r equired, the judge

shall appoint counsel for a movant who qualifies for the appointme nt o f counsel under 18

U.S.C. § 3006A(g) ...

Rule 8, 28 U.S.C. § 2255 (emphasis added). According to the government, these sections envision

two types of hearings. First, a judge must look to see if an evidentiary hearing is r equired under 8(a).

If so, then the judge proceeds to 8(c) and he must appoint counsel for that hearing. However, the

government reasons that if the judge does not believe that a hearing is required, then he is free, under

8(a), to make whatever disposition of the case that justic e requires. One permissible method to

dispose of the case, the government asserts, is to hold a hearing free from 8(c)'s mandatory right to

counsel.

This is not a valid reading of these provisions. There are not two species of hearings. If the

judge believes that an evidentiary hearing is needed to dispose of the case, then he has decided that

a hearing is required. Until the judge decides to hold a hearing, he has discretion over whether to

appoint counsel. However, if an evidentiary hearing is held, the judge s hall appoint counsel. R auter

v. United States, 871 F.2d 693, 695 (7th Cir.1989); Rule 8(c). This is because "[i]t is t he fact that

an evidentiary hearing is to be held with all the resulting complexities involved in such a hearing—for

example, the need to question and cross-examine witnesses—that gives rise to the requirement that

counsel be appointed for indigents." Alford, 709 F.2d at 423 (emphasis added).

Wit hin this same argument, the government also suggests that this hearing was not really an

evidentiary hearing, but rather, it was merely a forum for Vasquez to develop his claim under oath. 34 The government also argues that there could be no harm from any violation of the right to

counsel under the Sixth Amendment as Vasquez had no such constitutional right in the collateral

attack setting. As we find a violation of the statutory right to counsel under Rule 8(c), we do not

address this issue.

5 The government contends that Rauter v. United States, 871 F.2d 693 (7th Cir.1989), suggests

that a harmless error analysis is appropriate in this circumstance. In Rauter, the court held an Thus, as there was no evidentiary hearing, the government argues that Rule 8(c) is inapplicable.

This assertion simply does not comport with the instant record, though. First, the Magistrate

Judge labelled this hearing an evident iary hearing in his order setting the hearing. Further, in the

Judge's opening comments a t t he hearing, he stated that Mr. Vasquez's claims "required some

evidentiary development." Mr. Vasquez was placed on the stand and interrogated at length by both

the Magistrate Judge and the prosecution. No limitation as to what type of questions to be asked was

contemplated. Finally, at the end of the hearing, the Judge asked Vasquez if he had anything to add

or if he had any witnesses he wished to call.

Based on this record, it is quite clear that this was an evidentiary hearing. See Rauter, 871

F.2d at 696 (rejecting the argument that, as opposed to an evidentiary hearing, the hearing in Rauter's

action was merely a preliminary sectio n 2255 proceeding to allow Rauter to develop his claim).

Moreover , t his panel is hesitant to make any ruling that would allow the government to shirk its

responsibility under Rule 8(c) by simply manipulating the definition of what is an evidentiary hearing.

Alternatively, the gover nment suggests that the failure to appoint counsel at this hearing

under Rule 8(c) was harmless error. This is the case, the government contends, because a hearing

was not necessary to dispose of the case and Vasquez's claims were strai ghtforward and

uncomplicated. 4 As to whether the hearing was necessary, it has already been stated that when the

Magistrate Judge ordered a hearing, he implicit ly found that a hearing was required. As to the second

rationale, t he government attempts to support this by pointing to testimony from Vasquez elicited

from the very evidentiary hearing where Vasq uez was improperly denied counsel. From this

testimony, the government concludes that counsel was not needed at that hearing.

This argument fails because it is not proper to conduct a harmless error analysis on the failure

to appoint counsel for a hearing under Rule 8(c). 5 Nowhere do the rules governing section 2255evidentiary hearing in the absence of counsel in violation of § 8(c). Our sister circuit, without

considering the merits, vacated and remanded the action on the basis that no counsel was

provided. Going on, the Court stated, in a footnote, that "[e]ven if we considered a harmless

error analysis to be proper in this situation, we would be unable to find harmless error ..." Id. at 697. The government asserts this case supports its contention that a harmless error analysis is

permitted under § 8(c). We think that it suggests just the opposite. That is, this statement

suggests that the Court did not believe that a harmless error analysis was appropriate, but even if

it did, it would not change the result. In any case, this footnote in the dicta of Rauter is not

enough to sway our opinion.

6 See Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674

(1984) (In the Sixth Amendment context, "[a]ctual or constructive denial of the assistance of

counsel altogether is legally presumed to result in prejudice."). suggest that a harmless error analysis is proper. Further, though the Fifth Circuit has dealt with Rule

8(c) in only a handful of cases, in each case, this Court has found error when counsel was not

provided and has granted relief. A lford, 709 F.2d at 423; B ell v. Watkins, 692 F.2d 999, 1014 (5th

Cir.1982); L amb v. Estell e, 667 F.2d at 497; W ood v. Wainw right, 597 F.2d 1054, 1054 (5th

Cir.1979). In none of these cases was a harmless error analysis conducted.

Additionally, it is difficult to accurately assess whether it was harmless error to deny counsel

on the basis of a record developed at an evidentiary hearing conducted in the absence of that counsel.

One can only speculate on what the record might have been had counsel been provided. This decision

should not be based on spe culat io n. Acco rdingly, as with the right to counsel under the Sixth

Amendment, 6 when the statutory right to counsel at a Rule 8(c) hearing has been totally abridged,

harm must be presumed. Moreover, this panel refuses to rewrite Rule 8(c) by adding in a footnote

that states that when this mandatory right to counsel is denied, the petitioner must prove harm from

that error without the aid of the very counsel that was wrongfully withheld.

Lastly, the government argues that Vasquez was not entitled to counsel because he failed to

request counsel prior to or during the hearing and he evinced an intent to proceed pro se. This is not

a convincing argument.

First of all, it is unsurprising that Vasquez init ially proceeded pro se bec ause he had no

mandatory right to counsel until an evidentiary hearing was ordered. Moreover, there is nothing in

the record to suggest that Vasquez was even aware of his right to counsel at the hearing.

Nothing in the text of Rule 8(c) suggests that a section 2255 petitioner must request counsel.Further, it would be unfair to place this burden on an indigent, unrepresented petitioner particularly

where, as here, there is no record of the petitioner being made aware of that right. Accordingly, it

is more appropriate to follow the clear terms of Rule 8(c) which states that the judge shall appoint

counsel and not to add a clause that states that the judge shall appoint counsel if requested.

Finally, any argument that Vasquez has waived his right to counsel must fail. This is because

in light of the inherent dangers involved in self-representation, a waiver of a right to counsel must be

k n owingly and intelligently made. U .S. v. Foster, 867 F.2d 838, 840 (5th Cir.1989). As stated

above, there is no reason to believe that Vasquez was aware of his right to counsel at the hearing.

Nowhere in the transcript of the hearing did the Judge inform Vasquez of this right or in any way seek

to insure that Vasquez had voluntarily chosen to wa ive this important right. Thus, there is simply

nothing to support any argument that Vasquez knowingly and intelligently waived his right to counsel

at this hearing.

CONCLUSION

Vasquez, who had previously been granted pauper status, filed a section 2255 petition. The

Magistrate Judge ordered an evidentiary hearing to resolve Vasquez's claims, but he failed to appoint

counsel to represent Vasquez as mandated by Rule 8(c). This requires a reversal. S ee Lamb, 667

F.2d at 497 (5th Cir.1982). Thus, the district court's dismissal of Vasquez' § 2255 action is hereby

REVERSED and this cause is REMANDED to the district court for a proper evidentiary hearing with

appointed counsel. Additionally, this Court declines to comment on any of the substantive claims of

Vasquez's section 2255 petition based on the record we have before us made without the benefit of

counsel.