Franco v. United States

Decision Date08 August 2014
Docket NumberNo. 13–2607.,13–2607.
Citation762 F.3d 761
PartiesCesar D. FRANCO, Petitioner–Appellant v. UNITED STATES of America, Respondent–Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

OPINION TEXT STARTS HERE

Terrance Waite, argued, North Platte, NE, for PetitionerAppellant.

David M. Wear, AUSA, argued, Omaha, NE, for RespondentAppellee.

Before RILEY, Chief Judge, BEAM and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Cesar Franco pleaded guilty to conspiracy to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b). The district court sentenced Franco to 120 months' imprisonment. No direct appeal followed. Franco filed a 28 U.S.C. § 2255(b) motion to vacate his sentence, alleging that his attorney, Jerry Hug, failed to file a requested notice of appeal. The district court denied the motion without an evidentiary hearing. The court credited Hug's affidavit testimony that he did not recall Franco ever requesting an appeal, concluding that it was “more credible” than Franco's assertion that he asked Hug to file an appeal. We reverse and remand for an evidentiary hearing.

I. Background

Franco pleaded guilty to conspiring to distribute methamphetamine, for which he was sentenced to the statutory mandatory minimum 120 months' imprisonment. No appeal followed. According to Franco, he “unequivocally requested” that Hug file a notice of appeal after sentencing. It is undisputed that Hug never filed an appeal on Franco's behalf. Franco first discovered that Hug did not file an appeal after writing to Michael Gans, the Clerk of Court for the Eighth Circuit, about the status of his appeal. Gans's office informed Franco that his case had not been appealed. In July 2012, Franco filed a § 2255 motion to vacate his sentence in the district court on the ground that Hug's failure to file a notice of appeal, as requested, amounted to ineffective assistance of counsel.

In his § 2255 proceeding, Franco filed an affidavit stating that he asked Hug to file an appeal. Hug filed an affidavit in response, stating that he did not recall being asked to file an appeal in Franco's case and that he ordinarily files an appeal when he is asked to do so. Without holding an evidentiary hearing, the district court denied Franco's motion, finding “Hug's version of facts more credible.” According to the court, [t]he defendant pleaded guilty voluntarily, and the court informed him of the rights he surrendered by doing so.... The defendant had little reason to appeal as he had nothing to gain and had given up certain rights, including the right to challenge the lawfulness of the evidence against him.” On that basis, “the court credit[ed] [Hug's] story, and discredit[ed] [Franco's].”

II. Discussion

On appeal, Franco contends that the district court erred by making a credibility finding based on only an affidavit battle, without holding an evidentiary hearing. The government avers that Hug's affidavit “provides specific details as to when he spoke to Franco about Franco's right to appeal and the merits of filing an appeal” and that he “further averred that when a client requests him to file an appeal, he does so, regardless of whether the appeal has any merits.” The government characterizes Franco's affidavit as providing “only self-serving, self-contradicting statements.” On that basis, the government asserts that the court need not conduct an evidentiary hearing.

“A petitioner is entitled to an evidentiary hearing on a section 2255 motion unless ‘the motion and the files and the records of the case conclusively show that [he] is entitled to no relief.’ Anjulo–Lopez v. United States, 541 F.3d 814, 817 (8th Cir.2008) (quoting 28 U.S.C. § 2255(b)). “No hearing is required, however, where the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based.” Id. (quotation and citation omitted). We review the district court's decision not to hold an evidentiary hearing for an abuse of discretion.” Id. (citation omitted).

“Where petitioner's allegations, if true, amount to ineffective assistance of counsel, a hearing must be held unless the record ‘affirmatively refutes the factual assertions upon which [the claim] is based.’ Watson v. United States, 493 F.3d 960, 964 (8th Cir.2007) (quoting Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir.1994)). It is undisputed that Hug did not file a notice of appeal on Franco's behalf. If Franco directed Hug to file an appeal, then Hug's failure to appeal amounts to ineffective assistance of counsel. See Barger v. United States, 204 F.3d 1180, 1182 (8th Cir.2000) ( [A]n attorney's failure to file a notice of appeal after being instructed to do so by his client constitutes ineffective assistance entitling petitioner to section 2255 relief, no inquiry into prejudice or likely success on appeal being necessary.”).

In Watson, a criminal defendant pleaded guilty to the charges against him and waived some—but not all—rights to appeal. Watson, 493 F.3d at 961–62. Some months after sentencing, he complained via a § 2255 petition that he had instructed his attorneys to file a notice of appeal and that they had failed to do so. Id. at 962. While Watson's factual assertion was unchallenged, the district court characterized his claim as a ‘bare assertion’ which was insufficient to entitle him to relief or to a further inquiry.” Id. We reversed, holding that [a]lthough the district court was not required to credit Watson's assertion, see Barger, 204 F.3d at 1182, it was required to hold a hearing before making factual determinations about Watson's credibility.” Id. at 964.

In Koskela v. United States, the defendant complained that trial counsel did not present an alibi defense or subpoena witnesses who would have supported that defense, despite the defendant's instructions to do so. 235 F.3d 1148, 1149 (8th Cir.2001). The defendant submitted an affidavit stating his claim, as well as affidavits of the proposed witnesses who would have supported his alibi. Id. The government responded with an affidavit from his trial counsel, averring that the defendant had told him a different version of events and had never mentioned the names of potential alibi witnesses. Id. “The District Court concluded, without an evidentiary hearing, that the [defendant's] affidavits lacked credibility in the face of the government's pleadings and affidavits, and in any event did not undermine the Court's confidence in the trial outcome.” Id. We reversed, holding that [b]ecause the record before the District Court contained sharply conflicting evidence, the Court abused its discretion in finding a hearing unnecessary.” Id.

In this case, neither Hug's nor Franco's affidavit is, on its face, more credible than the other. The government contends that Hug's affidavit “provides specific...

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