USA vs. Navejar, (5th Cir. 1999)
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* Pursuant to 5 TH C IR . R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-50568 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BENJAMIN DELGADO NAVEJAR, JR., Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas USDC Nos. SA-97-CA-532 and SA-90-CR-170-1 July 26, 1999 Before GARWOOD, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM: * Benjamin Delgado Navejar, Jr., federal prisoner # 43691-080, appeals the district court§ 2255. Navejar asserts that he was not informed of his right to have counsel appointed on direct appeal and that he was denied his right to counsel. Navejar filed his appeal pro se .
The district court misconst r ued NavejarÂ’s argument as an argument that he was denied the right to appeal, rather than that he was denied the right to counsel on appeal. Although Navejar was informed at sentencing of his right to proceed in forma pauperis on appeal, the sentencing transcript does not show that he was informed of his right to court-appointed counsel on appeal.
The district court erred in holding that Naveja r could not establish prejudice from his attorneyÂ’s alleged ineffective assistance, because he did not request his attorney to file an appeal, and because the issues he raised on direct appeal were frivolous. However, Navejar averred that he requested his counsel to appeal but counsel refused to do so because Navejar could not pay his fee, and that counsel did not advise Navejar of his right to court-appointed counsel, and that Navejar was not aware of that right and for that reason and because he was indigent he appealed pro se , but would have requested appointment of counsel for appeal had he known he was entitled to same. The record as it stands now does not expressly refute these averments. It is not necessary to show prejudice when there is an actual or constructive denial of counsel on direct appeal of a criminal conviction. P enson v. Ohio , 488 U.S. 75, 88-89 (1988).
Because factual issues remain regarding whether Navejar was informed or otherwise aware of his right to court-appointed counsel on appeal and whether he was then indigent, the judgment of the district court is VACATED and the case is REMANDED for proceedings consistent with this opinion, including an evidentiary hearing to determine whether Navejar was informed (or otherwise aware) of his right to appointed counsel on appeal (and, if not, whether had he been so informed or aware he would have procured appointed counsel on appeal).
VACATED and REMANDED
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