USA v. Walker, (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 8, 2009
No. 07-10652 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JAMES DARRELL WALKER
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:07-CV-006
Before WIENER, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:* Petitioner James Darrell Walker ("Walker") sought a Certificate of Appealability ("COA") to appeal the district court's denial of his habeas corpus petition pursuant to 28U.S.C. § 2255. Walker contended that he received ineffective assistance of counsel ("IAC") because his attorney failed to file a direct appeal on his behalf after he, Walker, asked the lawyer to do so. After granting Walker a COA on the IAC claim, narrowly construed as the single question whether Walker's lawyer failed to file the appeal, we remanded the case * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. to the district court for the limited purpose of conducting an evidentiary hearing into whether Walker had in fact requested that his attorney file a direct appeal, and we retained jurisdiction.
The district court concluded on remand that (1) on the advice of his counsel, Walker decided not to file a direct appeal,1 and (2) Walker signed a document attesting to that fact. As this finding squarely forecloses Walker's IAC claim, his petition for habeas corpus is DENIED.
1 Walker pleaded guilty to drug charges, which plea agreement included a waiver of appeal. Apparently, Walker's attorney told him that attempting to appeal following such a waiver would be very difficult and advised against it. Walker then agreed.
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