United States v. McMillenUnited States v. McMillen
Gary D. Smart, Arlington, TX, for Defendant-Appellant.
Before REAVLEY, JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Manuel Chairez appeals his guilty plea conviction and sentence for being a convicted felon in possession of a firearm. On appeal, Chairez argues that his verbal motion to withdraw his guilty plea should have been granted because his plea was not voluntary. The district court‘s decision was not an abuse of discretion as Chairez has failed to show a fair and just reason for requesting the withdrawal of his guilty plea. See United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.1984).
Chairez also argues that the district court erred in applying the enhancement provision found in
Accordingly, the judgment of the district court is AFFIRMED.
Walter Wayne McMillen, Federal Correctional Institution, Beaumont, TX, pro se.
Before SMITH, DEMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Walter Wayne McMillen (“McMillen“), federal prisoner #26819-177, moves this court for a certificate of appealability (“COA“) to appeal the district court‘s denial of his
To obtain a COA, McMillen must make “a substantial showing of the denial of a constitutional right.”
The claims that McMillen raises in this court are ineffective assistance of counsel claims. Although some ineffective assistance of counsel claims may be waived, see United States v. White, 307 F.3d 336, 343-44 (5th Cir.2002), in this case the waiver specifically excepted ineffective assistance of counsel claims. Accordingly, McMillen‘s waiver did not bar these claims and McMillen has shown that the district court‘s procedural ruling was debatable or wrong. See Slack, 529 U.S. at 484.
The district court denied McMillen‘s relevant ineffective assistance of counsel claims without conducting an evidentiary hearing because the affidavit of McMillen‘s counsel contradicted McMillen‘s allegations, because it found that no evidence supported McMillen‘s claim that he had a viable public authority defense, and because it found that any appeal McMillen could have filed would have been meritless. McMillen‘s affidavit, however, set forth facts that, if true, showed that his counsel failed to file a notice of appeal after McMillen requested that he do so, that his counsel lied to him during plea negotiations, that he was working as a confidential informant at the time of his arrest, and that he asked his counsel to investigate and present a public authority defense but that his counsel refused to do so.
A district court may deny a
The record does not conclusively show that McMillen is not entitled to relief on his ineffective assistance of counsel claims. See Hughes, 635 F.2d at 451. McMillen presented facially valid claims that he would not have pleaded guilty but for his counsel‘s ineffectiveness and that his counsel was ineffective for failing to file a notice of appeal. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); Strickland v. Washington, 466 U.S. 668, 688-92 (1984); Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). The district court‘s finding that any direct appeal filed by McMillen would have been without merit does not change this analysis because the failure to file a notice of appeal upon request is ineffective assistance of counsel without a showing that the appeal would have merit. See Flores-Ortega, 528 U.S. at 477. Accordingly, we GRANT McMillen a COA on his claims that he would not have pleaded guilty but for his counsel‘s ineffectiveness and that his counsel was ineffective for failing to file a notice of appeal, VACATE the district court‘s denial of
COA GRANTED IN PART, DENIED IN PART; VACATED AND REMANDED.
Chad A. Shultz, Ford & Harrison, Atlanta, GA, William I. Gault, Jr., Kelly, Gault & Healy, Jackson, MS, for Defendant-Appellee.
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:1
In July 1998, the River Region Medical Corporation (“River Region“) discharged Louise McKenzie from employment for allegedly racially harassing employees whom she supervised. McKenzie filed a suit against River Region, two supervisors, and Quorum Health Group, Inc. (“Quorum“), a company allegedly involved in the day-to-day operations of River Region. After her termination, McKenzie alleged a variety of state and federal claims against the Defendants. The district court granted summary judgment to the Defendants. McKenzie appeals that ruling.
We are unable to reach the merits of McKenzie‘s arguments; her appellate brief precludes us from doing so. Federal Rule of Appellate Procedure 28(a)(9) states that an appellant‘s brief must contain an argument section with “contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Based on Rule 28, this Court has on several occasions declined to consider the merits of a claim where an appellant‘s brief lacked “logical argumentation or citation to authority.” See, e.g., Alameda Films SA de CV v. Authors Rights Restoration Corp. Inc., 331 F.3d 472 (5th Cir.2003); Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532 (5th Cir.1996); Randall v. Chevron U.S.A., Inc., 13 F.3d 888, 911 (5th Cir.1994). We have noted that “it is not the function of the Court of Appeals to comb the record for possible error, but rather it is counsel‘s responsibility to point out distinctly and specifically the precise matters complained of, with appropriate citations to the page or pages in the record where the matters appear.”