Franco v. United States, No. 13–2607.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: SMITH
• Citation: 762 F.3d 761
• Parties: Cesar D. FRANCO, Petitioner–Appellant v. UNITED STATES of America, Respondent–Appellee.
• Decision Date: 08 August 2014
• Docket Number: No. 13–2607.

762 F.3d 761

Cesar D. FRANCO, Petitioner–Appellant
v.
UNITED STATES of America, Respondent–Appellee.

No. 13–2607.

United States Court of Appeals,
Eighth Circuit.

Submitted: May 15, 2014.
Filed: Aug. 8, 2014.

[762 F.3d 762]

Terrance Waite, argued, North Platte, NE, for Petitioner–Appellant.

David M. Wear, AUSA, argued, Omaha, NE, for Respondent–Appellee.

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

[762 F.3d 763]

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))....