United States v. Ingmar Gillon

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2386
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James D. Doutt, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the Western
United States of America, * District of Missouri.
*
Appellee. * [UNPUBLISHED]
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Submitted: September 12, 2003
Filed: October 10, 2003
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Before MORRIS SHEPPARD ARNOLD, FAGG, and MELLOY, Circuit Judges.
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PER CURIAM
James Doutt seeks a certificate of appealability following the final order of the
district court denying his 28 U.S.C. § 2255 motion.
After Mr. Doutt pleaded guilty to one count of conspiracy to manufacture
100 grams or more of methamphetamine in violation of 18 U.S.C. § 846, the district
court sentenced him to 168 months imprisonment and five years of supervised
release. He did not appeal. Mr. Doutt then filed this section 2255 motion claiming
inter alia, that counsel was ineffective for failing to file a notice of appeal. The

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district court denied the motion in its entirety without conducting an evidentiary
hearing, and this appeal followed.
“[C]ounsel’s failure to file a notice of appeal when so instructed by the client
constitutes ineffective assistance of counsel for purposes of section 2255.” Estes v.
United States, 883 F.2d 645, 648 (8th Cir. 1989). Because the record is inconclusive
as to whether Mr. Doutt instructed his trial counsel to file a notice of appeal, the
district court should have held an evidentiary hearing on this issue. See id.; see also
Holloway v. United States, 960 F.2d 1348, 1357 (8th Cir. 1992) (noting that remand
for hearing is necessary if motion, files, and records of case are inconclusive on
whether defendant instructed counsel to file criminal appeal).
Accordingly, we grant Mr. Doutt’s request for a certificate of appealability on
the sole issue of whether counsel was ineffective for failing to file a notice of appeal
and remand to the district court to conduct an evidentiary hearing on this issue. With
regard to Mr. Doutt’s remaining claims, we deny his request for a certificate of
appealability.
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