UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-50373 Summary Calendar __________________

Robert Lee Jones,

Petitioner-Appellee,

versus

Wayne Scott, Director, Texas Department of Criminal Justice, Institutional Division,

Respondent-Appellant.

______________________________________________

Appeal from the United States District Court for the Western District of Texas (SA-94-CV-333) ______________________________________________

November 16, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:*

Petitioner-appellee Robert Jones ("Jones"), a Texas prisoner,

properly exhausted in Texas state courts his state habeas claim

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. that he had been denied the right to an appeal. The state district

court denied relief without making any findings. The Texas Court

of Criminal Appeals similarly denied relief. Jones then filed an

application for federal habeas relief pursuant to

.

The federal district court granted the petition. Respondent-

appellant Wayne Scott ("Respondent") appeals from the district

court's judgment granting Jones habeas relief and ordering that he

be released from prison if not granted an out-of-time appeal within

sixty days. We will affirm.

BACKGROUND

Jones was convicted of forgery by passing on May 20, 1988, and

was sentenced to a term of five years probation. On July 13, 1992,

the state sought to revoke, alleging that Jones had violated the

terms of his probation as a result of his indictment on November

19, 1991 for aggravated assault and his failure to report to his

assigned probation officer. Thomas Morris was appointed to

represent Jones at a November 10, 1992 hearing on the motion to

revoke. Jones stipulated that the allegation of an aggravated

assault indictment was true. After several continuances, the trial

court revoked Jones's probation on April 7, 1993, and sentenced him

to a five-year term of imprisonment.

Jones did not file a direct appeal. Jones filed an

unsuccessful "motion to set aside judgment" in the trial court and

then sought state habeas relief, alleging that he had been denied

the right to appeal. The trial court denied the petition without

2 entering findings and the Texas Court of Criminal Appeals

subsequently denied the petition without a written order.

Jones then filed an application for writ of federal habeas

corpus, alleging that his attorney abandoned him after his

probation was revoked and failed to advise him of his right to

appeal or to file an appeal on his behalf. Jones also asserted

that the state trial court had failed to advise him of his right to

appeal. Respondent answered the petition, arguing that under Tex.

Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 1995), Jones

had no right to appeal the revocation of probation. The magistrate

judge rejected Respondent's argument because section 5(b) applies

only to defendants who have received a deferred adjudication. See

Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a), (b) (West Supp.

1995). Because Jones was convicted and sentenced to a term of

probation, the magistrate judge concluded he had a right to appeal

the revocation. See id. § 23(b). Because Respondent offered no

evidence to controvert Jones's allegations that neither the trial

court nor his attorney informed him of his right to appeal and that

his attorney failed to appeal despite Jones's request that he do

so, the magistrate judge recommended that the district court grant

Jones's petition and order him released if Respondent did not grant

an out-of-time appeal within sixty days.

The district court found that Jones's sworn statement that he

had asked counsel to appeal and counsel had failed to do so was

based on personal knowledge and that Respondent failed to

controvert Jones's allegation. The district court accepted the

3 magistrate judge's recommendation.1 We granted Respondent's motion

to stay execution of the writ pending appeal.

DISCUSSION

A. Sufficiency of Jones's Sworn Statement

Respondent initially asserts that the district court erred in

determining that Jones's sworn statement that he was denied his

right to appeal was sufficient to support the grant of habeas

relief. Respondent argues that Jones's conclusory allegation

cannot support habeas relief. See Ross v. Estelle,

(5th Cir. 1983). The district court concluded that Jones's

sworn statement was not conclusory because it was based upon

Jones's own personal knowledge, not merely speculation. In Ross,

the petitioner asserted that his counsel was ineffective because a

key alibi witness was never investigated or interviewed.

The

petitioner alleged in his pro se brief that the witness would have

placed him at another place when the crime occurred; the court

found that no evidence in the record supported this assertion.

Clearly, Ross involved a petitioner who asserted matters about

which he had no personal knowledge, i.e., what a witness's

testimony would have shown. In contrast, Jones's sworn testimony

was based on personal knowledgeSQhe requested that counsel file an

appeal, which counsel failed to do. Jones made more than a

conclusory allegation, and the district court did not err in

1 The district court found that it would be more appropriate for the state courts to conduct a substantive review of the state court revocation proceeding.

4 finding that Respondent bore the burden to come forward with

controverting evidence. See Koch v. Puckett,

(5th Cir. 1990) (concluding petitioner's allegations were

conclusory and insufficient to support habeas relief on the basis

of an alleged collusive agreement between sheriff and petitioner's

attorney because petitioner alleged neither personal knowledge of

a collusive agreement nor specific or concrete sources of the

information).

B. Presumption of Correctness under § 2254(d)

Respondent also contends that the district court erred in

failing to presume correct the implicit credibility choice made by

the state court judge in denying Jones's habeas petition. Under

(d), a state court's findings of fact made after a

hearing on the merits are presumed to be correct unless one of

eight exceptions applies. See Williams v. Collins,

(5th Cir.), cert. denied, U.S. ,

(1994). A

determination of ineffective assistance of counsel is a mixed

question of law and fact and, thus, is not accorded the presumption

of correctness. Black v. Collins,

(5th Cir.),

cert. denied,

(1992). "However, any subsidiary

factual findings made by a state court in the course of determining

that effective assistance was rendered is entitled to the § 2254(d)

presumption." Id.

The presumption of correctness is not applicable in the

instant cause because no state court has ever made factual findings

5 with regard to Jones's allegation that he was not informed of his

right to appeal. Under section 2254(d), a determination evidenced

by "a written finding, written opinion, or other reliable and

adequate written indicia, shall be presumed to be correct." Both

the state district court and the Court of Criminal Appeals denied

Jones's petition without any findings.

Respondent nevertheless asserts that the state courts

implicitly found Jones's sworn testimony not credible and that this

court must give deference to that implicit determination. The

cases Respondent cites, however, involve situations where a full

evidentiary hearing on the merits was held and the state court

entered some factual findings. See Self v. Collins,

(5th Cir. 1992), cert. denied, U.S. ,

(1993); Lavernia v. Lynaugh,

(5th Cir. 1988);

see also Armstead v. Maggio,

(5th Cir. 1983)

(concluding presumption applicable despite the absence of written

findings where there had been a full evidentiary hearing and

findings were inferrable from the written judgment). In the

instant cause, no state court ever held an evidentiary hearing or

made any factual findings regarding Jones's allegations.

By its very terms, section 2254(d) clearly does not envision

that the presumption will be afforded under the circumstances of

the present case.

(d)(1), (2), (8).2 Because

2 Respondent also alleged that Jones was informed of his right to appeal by the boilerplate language in the written judgment revoking probation, which stated that Jones "was duly admonished according to law." This allegation is directly refuted by the transcript of the revocation hearing, which

6 Jones had a right to appeal the revocation of his probation, this

Court presumes Jones suffered prejudice if he was unable to appeal

because of counsel's ineffective performance. United States v.

Gipson,

(5th Cir. 1993). We therefore conclude

that the district court did not err in granting Jones's habeas

petition.

AFFIRMED.

clearly establishes that Jones was not informed of his right to appeal by the district court. Although Respondent suggests that correspondence between Jones and his attorney indicates that counsel informed Jones of his right to appeal, we need not consider this contention because Respondent failed to raise the issue in district court, and he presented it to this court for the first time in his reply brief. See National Labor Relations Bd. v. Cal-Maine Farms, Inc.,

(5th Cir. 1993). In any event, the letters do not refute Jones's unchallenged assertion that he requested counsel to appeal.

7