UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 97-10131

(Summary Calendar) _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL FLORES OCHOA,

Defendant-Appellant.

Appeal from the United States District Court For the Northern District of Texas (4:96-CV-636-Y)

September 9, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Daniel Flores Ochoa appeals the district court’s denial of his

motion to vacate, set aside, or correct his sentence pursuant to

. We granted a certificate of appealability (“COA”)

on the issue of whether the district court properly disposed of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Flores’s claim that he was denied effective assistance of appellate

counsel. This issue hinges on whether the district court should

have held a hearing to determine if Flores asked his counsel to

file a direct appeal. We remand so that the district court can

either hold such a hearing or explain why one is unnecessary.

I

The police arrested Flores and two codefendants after they

arranged for an undercover officer to transport a large load of

marijuana from Laredo to Dallas, took possession of the load, and

placed it in a garage belonging to one of the codefendants. Police

seized 314 pounds of marijuana from the garage. Subsequently, a

federal grand jury charged Flores and the two codefendants with

conspiracy to possess with the intent to distribute marijuana in

violation of

(count 1) and possession with intent

to distribute 100 kilograms or more of marijuana in violation of

(a)(1) and 841(b)(1)(B) (count 2).

As part of a plea agreement, Flores plead guilty to count 2.

Flores’s presentence report noted that he faced a statutory minimum

of 60 months’ imprisonment for that count, but that, under § 5C1.2

of the United States Sentencing Guidelines, he qualified under the

“safety valve” provision of

(f). Under this

provision, Flores could be sentenced without regard to the

statutory minimum. As a result, the district court sentenced

Flores to 50 months’ imprisonment, a four-year term of supervised

-2- release, and a $50 mandatory special assessment. Flores did not

appeal.

A year later, Flores moved to vacate, set aside, or correct

sentence under

, alleging that he had been denied

effective assistance of counsel because his lawyer, Paul Leech,

failed to file a notice of appeal and neglected to seek downward

departures under the safety valve provision and for Flores’s

mitigating role in the offense.

In its response to the motion, the government included an

affidavit from Leech. Leech swore that Flores, after consulting

with Flores’s wife, informed Leech that Flores did not wish to

appeal his sentence. Leech also testified that Flores had received

the benefit of the safety valve provision, and that, in Leech’s

professional judgment, Leech had no reason to request that Flores

be awarded a downward adjustment for having a mitigating role in

the offense.

Flores replied with an affidavit from his common-law wife,

Michelle De La Garza, stating that Flores and De La Garza decided

that Flores should file a direct appeal and discussed that decision

with Leech. De La Garza also averred in her affidavit that, after

she and Flores discussed their decision to appeal with Leech, she

believed that Leech would file such an appeal.

The district court denied Flores’s § 2255 motion without a

hearing and without making any specific findings of fact. The

court merely noted that after reviewing Flores’s motion, the

-3- government’s response, and Flores’s reply, “the motion should be

denied for the reasons stated in the government’s response.” After

Flores appealed, we granted a COA limited to the issue of whether

the district court properly disposed of Flores’s claim that he was

denied effective assistance of appellate counsel.

II

Flores contends that the district court erred in denying his

§ 2255 motion without a hearing, given the fact that there was

conflicting evidence over whether Leech had rendered effective

appellate assistance. In reviewing an order denying a § 2255

motion, we review a district court’s legal conclusions de novo and

its findings of fact for clear error. United States v. Gipson,

(5th Cir. 1993).

A criminal defendant has a Sixth Amendment right to effective

assistance of counsel in his first appeal of right. Evitts v.

Lucey,

,

,

(1985). An attorney’s failure to file a direct criminal appeal

despite the client’s request that one be filed constitutes

ineffective assistance of counsel. United States v. Guerra,

(5th Cir. 1996). As long as a movant can show that

he was denied the right to appeal due to ineffective assistance of

counsel, he does not have to establish that such an appeal might

have been successful. Gipson,

. However, if the

-4- defendant has been informed of his right to appeal and does not

make known to his attorney his desire to pursue an appeal, he has

waived that right and may not allege that his counsel provided

ineffective assistance.

.

Section 2255 states that

[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

(emphasis added). With regard to § 2255 motions

claiming ineffective assistance of counsel, we have directed

district courts to use a two-step inquiry. Friedman v. United

States,

(5th Cir. 1979). First, the district

court should examine the record in the case))as supplemented by the

judge’s “personal knowledge or recollection”))to determine if the

record conclusively negates the facts asserted by the movant.

Second, the district court should decide whether the movant would

be legally entitled to post-conviction relief if his factual

allegations are true (at least those allegations not conclusively

refuted by the record or the judge’s personal knowledge or

recollection).

If the district court resolves these two

prongs in favor of the movant, Ҥ 2255 requires [it] to conduct an

evidentiary hearing on those factual allegations which, if found to

be true, would entitle the petitioner to post-conviction relief.”

Id.

-5- The Friedman test will generally require the district court to

conduct an evidentiary hearing when factual disputes exist between

the affidavits submitted by the movant and the government. May v.

Collins,

(5th Cir.) (citing Machibroda v. United

States,

,

,

(1962)), cert. denied,

,

,

(1992). The district court may, however, resolve issues of

fact raised by conflicting affidavits by relying on other evidence

in the record. United States v. Hughes,

(5th

Cir. Unit B Jan. 1981); Owens v. United States,

(5th Cir.), cert. denied,

,

,

(1977).

In this case, the district court did not refer to any personal

knowledge or recollection as support in denying Flores’s motion,

nor did it mention any specific proof in the record. It simply

adopted the arguments made in the government’s response. Thus, the

only evidence we have regarding whether Flores asked Leech to file

a direct appeal consists of De La Garza and Leech’s respective

affidavits, and these affidavits plainly conflict. In her

affidavit, for instance, De La Garza testified that she and Flores

discussed their decision to file a direct appeal with Leech and

that, afterwards, “it was my understanding that [Leech] would be

filing the Appeal for” Flores. Conversely, in his affidavit, Leech

swore that Flores and De La Garza decided against a direct appeal.

-6- We discern no basis in the record for crediting Leech’s

affidavit over De La Garza’s. Certainly, the record does not

“conclusively negate” the facts alleged by Flores. Moreover, if

Flores is correct that he told Leech to file a direct appeal and

Leech failed to do so, then Flores is entitled to relief under

§ 2255.

Therefore, based on this record, we cannot say that “the

motion and the files and records of the case conclusively show that

[Flores] is entitled to no relief . . . .” Accordingly, we remand

so that the district court can hold an evidentiary hearing on

whether Flores asked his counsel to file a direct appeal or,

alternatively, explain why such a hearing is unnecessary.

REMANDED WITH INSTRUCTIONS.

-7-