         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                  Fifth Circuit

                                                                FILED
                                                               January 5, 2009
                               No. 07-30798
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellant

v.

EDDIE NELSON RUIZ, also known as Salvador Araiza

                                         Defendant-Appellee


                Appeal from the United States District Court
                   for the Western District of Louisiana
                          USDC No. 3:06-CV-1384
                        USDC No. 3:04-CR-30057-1


Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
     Eddie Nelson Ruiz, federal prisoner # 12555-035, was convicted of one
charge of possession of methamphetamine with intent to distribute and was
sentenced to serve 146 months in prison. Ruiz filed a 28 U.S.C. § 2255 motion
to challenge this conviction and sentence, and the district court denied his
motion after holding an evidentiary hearing. The district court then granted
Ruiz a certificate of appealability on the issue “whether [he] was denied the


     *
      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should not be published and is not precedent except under the limited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. 07-30798

effective assistance of counsel in violation of the Sixth Amendment as a result
of his counsel’s failure to inform him fully of his appellate rights and to file a
notice of appeal from his conviction and sentence.” This appeal ensued. Ruiz
argues that counsel should have filed a notice of appeal on his behalf or advised
him of the procedures for filing a pro se notice of appeal and requesting
appointed counsel because his correspondence to counsel reasonably expressed
his desire to appeal his conviction and sentence.
      When analyzing the district court’s denial of a § 2255 motion, this court
reviews the district court’s factual findings for clear error and its conclusions of
law de novo. United States v. Molina-Uribe, 429 F.3d 514, 518 (5th Cir. 2005).
To demonstrate ineffective assistance of counsel based on a claim that counsel
failed to file a notice of appeal, the movant must show that counsel performed
deficiently and that a reasonable probability exists that, but for counsel’s
deficient conduct, the defendant would have timely appealed.                Roe v.
Flores-Ortega, 528 U.S. 470, 476-77, 484, 486 (2000). Counsel’s performance is
deficient if counsel disregards his client’s wishes concerning filing an appeal or
if counsel fails to consult with the client on the matter when counsel has a
constitutionally imposed duty to do so. Id. at 477-78.
      Ruiz has failed to shoulder his burden of “prov[ing] that the ineffective
assistance of counsel denied him the right to appeal.” See United States v.
Gipson, 985 F.2d 212, 215 (5th Cir. 1993). The record evidence supports the
district court’s rejection of Ruiz’s claim that counsel infringed his appellate
rights by neither filing a notice of appeal on his behalf nor fully informing him
of the process for taking an appeal. This evidence shows that Ruiz did not
request that counsel pursue an appeal until after the time for appealing had
expired. The evidence likewise shows that counsel fulfilled his duty to consult
with Ruiz concerning an appeal.
      Ruiz has shown no error in connection with the district court’s rejection of
his claim that counsel rendered ineffective assistance with respect to filing a

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                               No. 07-30798

notice of appeal and consulting with him concerning his appellate rights.
Consequently, the judgment of the district court is AFFIRMED.




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