     09-3430-pr
     Ostap Kapelioujnyi v. United States

 1                                       UNITED STATES COURT OF APPEALS
 2                                          FOR THE SECOND CIRCUIT
 3
 4                                                SUMMARY ORDER
 5
 6           Rulings by summary order do not have precedential effect. Citation to a summary order
 7   filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
 8   Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document
 9   filed with this court, a party must cite either the Federal Appendix or an electronic database
10   (with the notation “summary order”). A party citing a summary order must serve a copy of it
11   on any party not represented by counsel.
12
13          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
14   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
15   on the 18th day of May, two thousand and eleven.
16
17   PRESENT:
18
19             JOSÉ A. CABRANES,
20             REENA RAGGI,
21                          Circuit Judges,
22             JANE A. RESTANI,
23                          Judge.*
24
25
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27   OSTAP KAPELIOUJNYI,
28
29                                  Petitioner-Appellant,
30
31
32             v.                                                                               No. 09-3430-pr
33
34   UNITED STATES OF AMERICA ,
35
36                                   Respondent-Appellee.
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39


               *
              The Honorable Jane A. Restani, of the United States Court of International Trade, sitting
     by designation.

                                                                    1
 1   FOR PETITIONER-APPELLANT:                                JANE S. MEYERS, Brooklyn, NY.
 2
 3   FOR RESPONDENT-APPELLEE:                                 WINSTON Y. CHAN , Assistant United States
 4                                                            Attorney (Loretta E. Lynch, United States
 5                                                            Attorney, on the brief, Emily Berger, Assistant
 6                                                            United States Attorney, of counsel ), Office of
 7                                                            the United States Attorney for the Eastern
 8                                                            District of New York, Brooklyn, NY.
 9
10
11          Appeal from a judgment of the United States District Court for the Eastern District of New
12   York (Joanna Seybert, Judge).
13
14        UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
15   ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
16
17           Petitioner-appellant Ostap Kapelioujnyi (“petitioner”) appeals from a July 29, 2009
18   Memorandum and Order of the District Court, denying his pro se petition for a writ of habeas corpus
19   pursuant to 28 U.S.C. § 2255. Petitioner pleaded guilty to racketeering, in violation of 18 U.S.C.
20   § 1962(c) and was sentenced, principally, to 68 months in prison. Under the plea agreement,
21   petitioner agreed “not to file an appeal or otherwise challenge by petition pursuant to 28 U.S.C.
22   § 2255 or any other provision the conviction or sentence in the event that the Court impose[d] a
23   term of imprisonment of 78 months or below.” A little over one year later, petitioner sought to
24   vacate his sentence pursuant to 28 U.S.C. § 2255, claiming that his representation had been
25   constitutionally ineffective in not filing a direct appeal in violation of his request to do so. Our
26   Court granted a Certificate of Appealability regarding, among other things, the question of whether
27   the District Court “should have conducted an evidentiary hearing to determine if petitioner
28   instructed his attorney to file a notice of appeal.” We assume the parties’ familiarity with the facts
29   and procedural history of this case and the issues raised on appeal.
30
31            We review a district court’s denial of a hearing under 28 U.S.C. § 2255 for abuse of
32   discretion, and any factual findings are reviewed for clear error. See Chang v. United States, 250 F.3d
33   79, 82 (2d Cir. 2001); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (“A district court has abused its
34   discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment
35   of the evidence, or rendered a decision that cannot be located within the range of permissible
36   decisions.” (alteration, citations, and quotation marks omitted)). “A finding is ‘clearly erroneous’
37   when although there is evidence to support it, the reviewing court on the entire evidence is left with
38   the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co.,
39   333 U.S. 364, 395 (1948); accord Anderson v. City of Bessemer City, 470 U.S. 564, 574-75 (1985) (“If the
40   district court’s account of the evidence is plausible in light of the record viewed in its entirety, the

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 1   court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact,
 2   it would have weighed the evidence differently. Where there are two permissible views of the
 3   evidence, the factfinder’s choice between them cannot be clearly erroneous.”).
 4
 5            For substantially the same reasons stated by the District Court in its careful Memorandum
 6   and Order, Ostap Kapelioujnyi v. United States of America, 08-CV-2414 (JS), 2009 WL 7868860
 7   (E.D.N.Y. July 29, 2009), we hold that the District Court did not clearly err, much less abuse its
 8   discretion, in declining to hold an evidentiary hearing before dismissing the habeas petition.
 9   Specifically, contrary to petitioner’s contention that his attorney failed to consult with him regarding
10   appeal, petitioner’s own affidavit states that, after petitioner “expressed interest” in appealing, his
11   counsel explained that petitioner had waived his appeal rights and that the sentence was within the
12   plea agreement’s stipulated Guidelines range. Petitioner does not aver that he expressed any further
13   interest in appealing after hearing this advice. Under these circumstances, we identify no abuse of
14   discretion in the District Court’s denial of a hearing because the record demonstrates that counsel
15   consulted sufficiently with petitioner regarding appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 478
16   (2000) (stating that “consult” requires advising client regarding “advantages and disadvantages” of
17   appeal and “making a reasonable effort to discover” client’s wishes). Accordingly, we affirm the
18   judgment disposing of all claims.
19
20                                             CONCLUSION
21           For the reasons stated above, the judgment of the District Court is AFFIRMED.
22
23

24                                                   FOR THE COURT,

25                                                   Catherine O’Hagan Wolfe, Clerk of Court




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