United States v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-60706
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARLON JOHNSON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(1:97-CV-571-PG)
_________________________
December 7, 2000
Before POLITZ, SMITH, and PARKER,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
In his motion filed pursuant to 28 U.S.C.
§ 2255, Marlon Johnson asserts ineffective as-
sistance of counsel. Concluding that the dis-
trict court should have held an evidentiary
hearing to determine whether Johnson had re-
quested that his attorney file a direct appeal
challenging the voluntariness of his guilty plea,
we remand for an inquiry into that limited
issue.
I.
Johnson pleaded guilty of conspiracy to
possess with intent to distribute cocaine and
conspiracy to intimidate a witness. Pursuant
to a plea agreement, he waived the right to
appeal his sentence and the right to contest it
* 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determined that this opinion should not be
published and is not precedent except under the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.

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2
collaterally.1 The district court accepted the
plea and imposed sentence.
Johnson then filed the instant § 2255
motion, alleging that his counsel was
ineffective in that he had failed to (1) argue
diligently that Johnson should receive a
three-point reduction for acceptance of
responsibility; (2) file a notice of appeal as
requested; and (3) challenge the use, for
enhancement, of a prior state conviction that
was allegedly constitutionally infirm. Johnson
also argued that the court had failed to inquire
as to the validity of the prior conviction used
for enhancement.
The magistrate judge issued a report and
recommendation that the motion be denied, to
which Johnson timely filed objections. The
district court adopted the report and denied
Johnson’s § 2255 motion.
Johnson filed a motion for a certificate of
appealability (“COA”) without first having
filed a notice of appeal. This was a non-fatal
procedural misstep, for the court construed the
COA as a notice of appeal, then determined
that a COA should not issue. This court then
granted Johnson’s motion for a COA on the
issue of whether counsel was ineffective for
failing to file a direct appeal as requested.
II.
A.
Johnson and the government have taken
turns confusing the issue of whether Johnson
challenges his sentence or his guilty plea.2 We
proceed in the only manner open to us and
consider whether Johnson’s counsel was in-
effective by not appealing the acceptance of
the guilty plea.3 There are no non-frivolous
grounds on which Johnson can challenge his
knowing and voluntary waiver of the right to
appeal his sentence. We review mixed
questions of fact and law, such as ineffec-
tive-assistance-of-counsel claims, de novo.
United States v. Faubion, 19 F.3d 226, 228
(5th Cir. 1994).
B.
Guilty pleas that are final carry more weight
than does a mere confession; they are an
admission that the defendant committed the
crime of which he was accused. See United
States v. Broce, 488 U.S. 563 (1989). Courts
1 The memorandum of understanding, signed by
Johnson and explained by the district court, stated
that Johnson “expressly waives the right to appeal
the sentence imposed in this case, or the manner in
which that sentence is imposed, on the grounds set
forth in Section 3742, or on any ground
whatsoever, including double jeopardy and/or
excessive fines, and expressly waives the right to
contest the sentence or the manner in which the
sentence was imposed in any post-conviction
proceeding, including but not limited to a motion
brought under Section 2255, Title 28, United
States Code.”
2 The government’s brief asserts that he “con-
cedes that it is his sentence that he wishes to ap-
peal, and not the plea.” This misleading statement
is based on language in Johnson’s statement of the
case. A truer characterization of the claim on ap-
peal is that language regarding his sentence pre-
dominates Johnson’s brief, although at one point he
alleges he was not aware of any “plea waiver.”
3 In granting a COA, we specifically rejected
Johnson’s request to grant a COA on the issue of
whether the court erred in holding that Johnson
waived his right to argue that his counsel was in-
effective in failing to (1) challenge the sentence or
(2) argue for a three-point reduction in the offense
level. We also rejected, for want of jurisdiction,
the allegation that the government had breached the
plea agreement.

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3
should proceed cautiously when a defendant
seeks to reopen a guilty plea that has become
final; “the inquiry is ordinarily confined to
whether the underlying plea was both
counseled and voluntary.” Id. at 569.4
To prevail on a claim of ineffective
assistance of counsel, a defendant 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.
Strickland v. Washington, 466 U.S. 668,
689-94 (1984). To show Washington
prejudice, a defendant must demonstrate that
counsel’s errors were so serious as to
“render[] the result of the trial unreliable or the
proceeding fundamentally unfair.” Lockhart v.
Fretwell, 506 U.S. 364, 372 (1993).
“Unreliability or unfairness does not result
if the ineffectiveness of counsel does not de-
prive the defendant of any substantive or pro-
cedural right to which the law entitles him.”
Id. In evaluating such claims, we indulge in “a
strong presumption” that counsel’s
representation fell “within the wide range of
reasonable professional competence, or that,
under the circumstances, the challenged action
‘might be considered sound trial strategy.’”
Bridge v. Lynaugh, 838 F.2d 770, 773 (5th
Cir. 1988) (citation omitted). “A fair
assessment of attorney performance requires
that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from
counsel’s perspective at the time.”
Washington, 466 U.S. at 689. A failure to
establish either deficient performance or
prejudice defeats the claim. Id. at 697.
In the noncapital context, the Washington
standard has been held to involve the review of
several factors. Spriggs v. Collins, 993 F.2d
85, 88 (5th Cir. 1993).
[I]n deciding such an ineffectiveness
claim, a court must determine whether
there is a reasonable probability that but
for trial counsel’ s errors the defendant’s
noncapital sentence would have been
significantly less harsh. In deciding
whether such prejudice occurred, a
court should consider a number of
factors: the actual amount of the
sentence imposed on the defendant by
the sentencing judge or jury; the
minimum and maximum sentences
possible under the relevant statute or
sentencing guidelines, the relative
placement of the sentence actually
imposed within the range, and the
various relevant miti gating and
aggravating factors that were properly
considered by the sentencer.
Id. at 88-89 (footnote omitted).
Johnson’s claim is that counsel failed to put
forward any effort with regard to the re-
quested appeal. Such a complete lack of ef-
fort, if true, is likely to result in Washington
prejudice. The failure of counsel to perfect an
appeal on request, or failure to advise the cli-
ent of his right to appeal and the time limits
involved may constitute ineffective assistance,
entitles the defendant to an out-of-time appeal.
4 Johnson’s allegations are not precise as to
whether he challenges that he was not counseled or,
instead, that his plea was involuntary. This is an
issue the district court should explore on remand.
Ultimately to succeed, Johnson will have to prove
that his guilty plea was flawed, not just that he
requested an appeal.

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4
See United States v. Gipson, 985 F.2d 212,
215 (5th Cir. 1993). In Roe v. Flores-Ortega,
528 U.S. 470, ___, ___-___, 120 S. Ct. 1029,
1035, 1038-40 (2000), the Court addressed an
ineffective assistance of counsel claim in the
context Johnson presents here, holding that
Washington provides the proper framework
for evaluating a claim that counsel was
ineffective for failing to file a notice of appeal.5
The district court determined that Johnson
had waived his right to appeal, and, therefore,
counsel was not ineffective for failing to file an
appeal. This was error. The plain language of
the plea shows that Johnson only waived the
right to appeal his sentence; it does not men-
tion a wavier of the right to appeal the
conviction based on his guilty plea. If
Johnson’s allegation is true that he asked
counsel to file a direct appeal of the
conviction, and counsel did not do so,
prejudice is presumed. See Penson, 488 U.S.
at 88-89.
The record does not shed any light on John-
son’s alleged request that counsel file a direct
appeal or on any response or action on the part
of his attorney. Nor does the record
conclusively show that Johnson is not entitled
to relief. See United States v. Bartholomew,
974 F.2d 39, 41 (5th Cir. 1992). Johnson ’s
allegation that he asked his counsel to file a
direct appeal6 triggered an obligation to hold
an evidentiary hearing. See Mack v. Smith,
659 F.2d 23 (Former 5th Cir. Oct. 1981); see
also Chapman v. United States, 469 F.2d 634,
636 (5th Cir. 1972). We remand for such a
hearing, which is not to be an additional forum
for Johnson to raise any issues he has managed
to waive.7 The sole question on remand is
whether Johnson requested that his attorney
file a direct appeal challenging the guilty plea
and, if so, whether the attorney failed to file
the appeal.
The judgment of conviction is VACATED
and REMANDED for further proceedings.
5 Flores-Ortega alters this court’s
jurisprudence, which had provided that a
Washington analysis is not to be performed where
there has been actual or constructive complete
denial of any assistance of appellate counsel. See,
e.g., Sharp v. Puckett, 930 F.2d 450, 451-52 (5th
Cir. 1991) (citing Penson v. Ohio, 488 U.S. 75
(1988)); Gipson, 985 F.2d at 215 (§ 2255 case).
6 Johnson alleges that after the sentencing hear-
ing, he asked counsel to file a direct appeal, and
counsel agreed to do so and stated that the matter
would be discussed later. Johnson also alleges that
he attempted to contact his attorney during the ten
days after sentencing but was unsuccessful,
learning only seven months later that an appeal had
not been filed. He argues that if he had known that
counsel had not file a direct appeal, he would have
filed a pro se notice of appeal.
7 The district court should be impatient with any
attempt to discuss (1) the breach of the plea
agreement, (2) any challenge to the sentence,
(3) the use of the uncounseled misdemeanor, or (4)
an ineffective assistance of counsel claim relating
to the waiver of Johnson’s right to appeal his
sentence.

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