Opinion
D.C. Nos. CV-97-00131-WFN, CR-95-00135-WFN
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted March 8, 2000.
Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielsen, Chief District Judge, Presiding.
Before BROWNING, B. FLETCHER, and GOULD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or used by the courts of this circuit except as provided by Ninth Cir. R. 36-3.
Federal prisoner Antero Carre§o appeals the denial of his 28 U . S.C.§ 2255 petition challenging his conviction following a guilty plea for conspiracy to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 2253, and affirm.
Mr Carre§o contends that the district court erred by denying his request for a certificate of appealability on the issue of whether counsel was ineffective for failing to conduct an adequate investigation of witnesses and subsequently improperly advising him to accept a plea agreement. This contention lacks merit.
We review de novo a district court's decision not to issue a certificate of appealability. See United States v. Budell, 187 F.3d 1137, 1140-41 (9th Cir.1999). The certificate may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Mr. Carre§o has failed to show any prejudice arising from his counsel's failure to conduct an investigation of witnesses, and therefore has failed to make a substantial showing of a denial of his constitutional right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Mr. Carre§o further contends that the district court erred in finding that his lawyer, Mr. Bantz, was not ineffective for failing to file a notice of appeal. This contention also lacks merit. Ineffective assistance of counsel claims are reviewed de novo. See United States v. Span, 75 F.3d 1383, 1387 (9th Cir.1996). The district court's findings of fact are reviewed for clear error. See id. at 1386. Where the defense attorney consults with the defendant about an appeal, the attorney's performance is only constitutionally deficient if she or he fails to follow the client's express instructions with regard to the appeal. See Roe v. Flores-Ortega, No. 98-1441, 2000 WL 201148, at *6 (U.S. Feb. 23, 2000).
Here, it is undisputed that Mr. Bantz consulted with Mr. Carre§o about his appeal. The district court held an evidentiary hearing to determine whether during that consultation, Mr. Carre§o expressly instructed Mr. Bantz to file an appeal. At the evidentiary hearing Mr. Carre§o testified that he instructed Mr. Bantz to file an appeal. Mr. Bantz testified that at the conclusion of the consultation he had not been directed to file a notice of appeal. The district court resolved the issue in favor of Mr. Bantz, pointing to evidence in the record of Mr. Carre§o's lack of credibility. We do not find clear error in the district court's determination that Mr. Carre§o did not give his lawyer express instructions with respect to the appeal. Accordingly, the district court's order denying Mr. Carre§o's § 2255 motion is AFFIRMED.