United States v. Bustamante ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50744
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOE MARTINEZ BUSTAMANTE, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-97-CA-520
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June 30, 1999
Before DAVIS, DUHE’, and PARKER, Circuit Judges.
PER CURIAM:*
Federal prisoner Joe Martinez Bustamante, Jr. appeals the
district court’s denial of his 28 U.S.C. § 2255 motion. COA was
granted on the issue whether Bustamante should be granted an out-
of-time appeal on the grounds that counsel was ineffective in
failing to prosecute his direct criminal appeal, as was
recommended by the magistrate judge.
*
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that this opinion should not be published and is not precedent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.
No. 98-50744
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The record demonstrates that counsel’s inaction denied
Bustamante his right to a direct appeal. See U.S. v. Riascos, 76
F.3d 93, 94 (5th Cir. 1996)(record supported denial-of-appellate
counsel claim when counsel filed notice of appeal but the appeal
was dismissed for lack of prosecution). The Government’s
contention that counsel was not ineffective because Bustamante
ultimately decided to pursue a collateral challenge instead of a
direct appeal is without merit. Counsel’s affidavit acknowledges
that he did not perfect the appeal; it further explains that
Bustamante’s decision to pursue a collateral challenge was made
only after the appeal had been dismissed and was the result of
counsel’s advice to pursue a collateral attack because of the
difficulties involved in reinstating the appeal. As Bustamante
points out, his decision to pursue a collateral challenge on
counsel’s advice after his appeal was dismissed is not evidence
that he had not desired to pursue a direct appeal.
The Government’s argument that Bustamante has not
demonstrated any prejudice is not well-taken. Because Bustamante
has demonstrated a constructive absolute denial of counsel,
prejudice is presumed. See Penson v. Ohio, 488 U.S. 75, 88
(1988); Sharp v. Puckett, 930 F.2d 450, 451-52 (5th Cir. 1991).
The district court erred in determining that Bustamante’s denial-
of-appellate-counsel claim is without merit. Its judgment is
REVERSED, and the case is REMANDED for further proceedings.
We do not reach the other issues raised in Bustamante’s
brief because the appeal is limited to the issue stated in the
No. 98-50744
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certificate of appealability. See Lackey v. Johnson, 116 F.3d
149, 151-52 (5th Cir. 1997).
REVERSED AND REMANDED.