Summary Calendar UNITED STATES OF AMERICA v. Tommy Nabor, also known as Sealed

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-30395
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TOMMY NABOR, also known as Sealed Defendant 1
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:05-CV-1285
USDC No. 3:04-CR-148
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Tommy Nabor, Jr., federal prisoner # 04263-095, appeals the denial of his
28 U.S.C. § 2255 motion to correct his sentence imposed when he pleaded guilty
to one count of distribution of powder cocaine and two counts of distribution of
five grams or more of cocaine base. Within ten days after the entry of judgment
of conviction, Nabor filed his § 2255 motion pro se, alleging that he did not
voluntarily and knowingly enter his plea and that his attorney had rendered
United States Court of Appeals
Fifth Circuit
F I L E D
November 30, 2007
Charles R. Fulbruge III
Clerk

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No. 06-30395
1 Nabor did not seek a COA to appeal the district court’s refusal to treat
his § 2255 motion as a notice of appeal.
2
ineffective assistance. Nabor asserts that he filed this § 2255 motion thinking
it was a notice of appeal, and while the motion is captioned and structured as a
§ 2255 motion, Nabor states in the motion itself that the result of the direct
appeal he filed in Middle District of Louisiana is “unknown (current
application).”
After the district court assigned the motion to a magistrate judge (MJ), the
Government responded, and the MJ’s report recommended that Nabor’s motion
be denied on the merits. Before the district court acted on the MJ’s report and
recommendation, Nabor filed a motion for leave to amend, asking the court to
treat his § 2255 motion as a notice of appeal or, in the alternative, to allow him
to amend his § 2255 motion to add an allegation that his attorney provided
ineffective assistance by failing to file an appeal despite Nabor’s request that he
do so. The district court denied Nabor leave to amend in either manner without
explanation. The district court then overruled Nabor’s objections to the MJ’s
report, adopted the MJ’s report and recommendation, and denied Nabor’s § 2255
motion.
After Nabor timely filed a notice of appeal, we granted Nabor a COA with
respect to whether the district court abused its discretion in refusing to grant
Nabor leave to amend his § 2255 motion to add a claim for ineffective assistance
of counsel based on his attorney’s failure to file a notice of appeal.1 The FEDERAL
RULES OF CIVIL PROCEDURE apply to amendments and supplements of motions
brought under 28 U.S.C. § 2255. See 28 U.S.C. § 2242; RULES GOVERNING
SECTION 2255 PROCEEDINGS, Rule 12. Under FED. R. CIV. P. 15(a), a plaintiff is
allowed, as a matter of right, one amendment before any responsive pleading has
been filed, but subsequent amendments are permitted only with leave of court.
Id.; Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir. 1981). FED.

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No. 06-30395
3
R. CIV. P. 15 instructs that leave to amend “shall be freely given when justice so
requires.” Nabor argues that the district court abused its discretion in refusing
to allow him to amend his pleadings to add a claim that his attorney rendered
ineffective assistance by failing to file a notice of appeal as instructed.
The Government correctly observes that appellate review of the decision
to grant or deny leave is limited to determining whether the trial court abused
its discretion. See Dussouy, 660 F.2d at 597. We have held that “outright
refusal to grant leave to amend without a justification such as ‘undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc.’ is
considered an abuse of discretion.” United States ex rel. Adrian v. Regents of the
Univ. of Cal., 363 F.3d 398, 403 (5th Cir. 2004) (quoting Foman v. Davis, 371
U.S. 178, 182 (1962)).
Here, the district court did not provide any reasons explaining why it
denied Nabor leave to amend his § 2255 motion, and nothing in the record
indicates that anything like the accepted reasons justifying such a denial were
present in Nabor’s case. Although Nabor did not file his motion for leave to
amend until after the Government filed its response and the MJ issued a
recommendation, the nature of the amendment Nabor sought would not have
prejudiced the Government. In addition, Nabor’s good faith is supported by his
consistent statements that he believed his § 2255 motion was a direct appeal and
by his request in his motion for leave that his § 2255 motion be treated as a
direct appeal. In fact, Nabor indicated on the face of his § 2255 motion that he
was attempting to file a direct appeal through that vehicle.
The Government argues that the district court’s denial of leave to amend
should be upheld because Nabor’s ineffective assistance claim was futile. In
response, Nabor contends that his attorney’s failure to file a notice of appeal
constitutes ineffective assistance of counsel per se.

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No. 06-30395
4
Neither party is entirely correct. In Roe v. Flores-Ortega, 528 U.S. 470
(2000), the Supreme Court held that the failure of an attorney to file a notice of
appeal only requires reinstatement of appellate proceedings if the defendant
shows “(1) that counsel’s representation ‘fell below an objective standard of
reasonableness,’ . . . and (2) that counsel’s deficient performance prejudiced the
defendant.” Flores-Ortega, 528 U.S. at 476-77 (citing Strickland v. Washington,
466 U.S. 668, 688, 694 (1984)). The Court refused to hold that the failure to file
a notice of appeal is unreasonable per se, requiring instead that courts evaluate
the reasonableness of the attorney’s conduct in light of the specific facts of the
case. Id. at 477-81. The Court did instruct, however, that “[i]f counsel has
consulted with the defendant,” then “[c]ounsel performs in a professionally
unreasonable manner only by failing to follow the defendant’s express
instructions with respect to an appeal.” Id. at 478. For the prejudice prong of
the ineffective assistance claim, the Flores-Ortega Court held that the defendant
must demonstrate “that, but for counsel’s deficient performance, he would have
appealed.” Id. at 484. Because Nabor specifically alleged in his motion to amend
below that his attorney failed to file a notice of appeal despite being instructed
to do so and that, if his attorney had done so, Nabor’s mislabelled § 2255 motion
filed within 10 days after his judgment of conviction would have been properly
filed as a notice of appeal, Nabor set forth a prima facie claim of ineffective
assistance of counsel. See Flores-Ortega, 528 U.S. at 476-84.
The district court abused its discretion in refusing to allow Nabor to add
the claim of ineffective assistance of counsel without any of the accepted reasons
justifying such a denial. See FED. R. CIV. P. 15(a); Adrian, 363 F.3d at 403. The
judgment below is vacated and the case is remanded with instructions that the
district court grant Nabor leave to amend his pleadings to add his claim that his
counsel was ineffective in failing to perfect the appeal as Nabor instructed.
VACATED AND REMANDED.

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