US v. Edgar Hernandez, No. 14-7846 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7846 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EDGAR BENITEZ HERNANDEZ, a/k/a Clavo, a/k/a Shadow, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:10-cr-00223-CMH-1; 1:14-cv-01042-CMH) Submitted: April 17, 2015 Decided: May 19, 2015 Before MOTZ, DUNCAN, and HARRIS, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Edgar Benitez Hernandez, Appellant Pro Se. Patricia Marie Haynes, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Edgar Benitez Hernandez seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2255 (2012) motion. grant a certificate of appealability, vacate the We district court’s order, and remand for further proceedings. Hernandez pled guilty to two counts of use and discharge of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) (2012). Hernandez did not appeal his conviction or sentence; instead, he filed a § 2255 motion alleging that he directed his counsel to note an appeal but counsel failed to do so. Without conducting an evidentiary hearing or determining whether Hernandez unequivocally asked counsel to file a notice of appeal, § 2255 because waiver, the motion. district In so Hernandez’s counsel court doing, plea acted denied the district agreement reasonably by relief on court contained not Hernandez’s filing an a held that appellate notice of appeal and counsel’s failure did not prejudice Hernandez. “When the district court denies § 2255 relief without an evidentiary hearing, the nature of the court’s ruling is akin to a ruling on a motion for summary judgment [and] we review the facts in the light most favorable to the § 2255 movant.” United States 2007). v. Poindexter, 492 F.3d 263, 267 (4th Cir. Accordingly, for the purposes of this appeal, we must assume, as 2 Hernandez contends, that he unequivocally asked counsel to file a notice of appeal. Id. at 267, 269. The Sixth Amendment obligates counsel to file a notice of appeal when a defendant requests him to do so; a waiver of appellate rights in a defendant’s absolve counsel of this duty. plea agreement Id. at 268-69. does not Counsel’s failure to file a requested notice of appeal prejudices the defendant because it deprives him of his appellate proceeding. Id. at 269. Accordingly, we grant a certificate of appealability, grant Hernandez leave to proceed in forma pauperis, and vacate the district court’s motion. Because it is not apparent from the record whether counsel order fulfilled his denying relief obligations in on Hernandez’s regard to § 2255 Hernandez’s appellate rights, see Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000), Poindexter, 492 F.3d at 271, we remand district court can make this determination. oral argument adequately because presented in the the facts and materials legal before so that the We dispense with contentions this court are and argument would not aid the decisional process. VACATED AND REMANDED 3
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