Cesar Franco v. United States, 762 F.3d 761

Cesar Franco pleaded guilty to conspiracy to distribute ≥50 g methamphetamine and was sentenced to the mandatory 120-month term; no direct appeal was filed.
Franco later learned from the Eighth Circuit Clerk that no appeal had been filed and filed a 28 U.S.C. § 2255 motion claiming his attorney, Jerry Hug, failed to file a requested notice of appeal.
Franco submitted an affidavit stating he unequivocally requested Hug to file an appeal after sentencing; Hug submitted an affidavit stating he did not recall any such request and that he files appeals when asked.
The district court denied § 2255 relief without an evidentiary hearing, crediting Hug’s affidavit over Franco’s and reasoning Franco had little reason to appeal after a guilty plea.
The Eighth Circuit reviewed whether the district court abused its discretion by resolving credibility between conflicting affidavits without an evidentiary hearing and whether Hug’s failure to file an appeal (if requested) constitutes per se ineffective assistance.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an evidentiary hearing was required on Franco’s claim that he asked counsel to file an appeal	Franco: his affidavit alleging he requested an appeal entitled him to a hearing because affidavits conflict	Govt/Hug: Hug’s affidavit contains specific details and negates Franco’s claim; no hearing needed	Court: Reversed — conflicting affidavits required an evidentiary hearing; district court abused discretion by deciding credibility on paper
Whether counsel’s failure to file a requested appeal is ineffective assistance per se	Franco: if he asked Hug and no appeal was filed, that failure is ineffective assistance requiring relief	Govt: disputes request and emphasizes merits/counsel’s usual practice of filing appeals when asked	Court: If client requested an appeal and counsel failed to file, that constitutes ineffective assistance without need to show prejudice (Barger rule); remand for hearing to determine if request was made

Anjulo-Lopez v. United States, 541 F.3d 814 (8th Cir. 2008) (§ 2255 petitioner entitled to hearing unless record conclusively shows no relief or record affirmatively refutes claim)
Watson v. United States, 493 F.3d 960 (8th Cir. 2007) (district court must hold hearing before making credibility determinations where petitioner alleges counsel failed to file requested appeal)
Barger v. United States, 204 F.3d 1180 (8th Cir. 2000) (attorney’s failure to file notice of appeal after being instructed constitutes ineffective assistance per se)
Koskela v. United States, 235 F.3d 1148 (8th Cir. 2001) (reversed district court that denied hearing where affidavits presented sharply conflicting evidence)
Shaw v. United States, 24 F.3d 1040 (8th Cir. 1994) (standard that no hearing is required when record affirmatively refutes petitioner’s factual assertions)