     Case: 10-40791     Document: 00511543655         Page: 1     Date Filed: 07/19/2011




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

                                                                            FILED
                                                                            July 19, 2011
                                     No. 10-40791
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RICK ROGELIO CONTRERAS, also known as Eddie, also known as Pilar
Gonzalez-Lopez, also known as Armando,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:10-CV-36
                             USDC No. 5:07-CR-378-1


Before WIENER, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Rick Rogelio Contreras, federal prisoner # 82564-179,
was convicted of one charge of conspiracy to possess with intent to distribute
more than five kilograms of cocaine and was sentenced to serve 151 months in
prison. Contreras filed a motion pursuant to 28 U.S.C. § 2255 to challenge his
conviction and sentence. The district court denied this motion. The court then


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-40791    Document: 00511543655      Page: 2   Date Filed: 07/19/2011

                                  No. 10-40791

granted Contreras a certificate of appealability (COA) on the issue whether he
was denied the effective assistance of counsel as a result of his counsel’s failure
to file a notice of appeal from his conviction and sentence. This appeal ensued.
      Contreras contends that he “asked his attorney about an appeal” and that
his ensuing discussion with his counsel consisted only of counsel’s notifying him
of the right to appeal and expressing his opinion that an appeal would not be
successful. When analyzing the district court’s denial of a § 2255 motion, we
review that court’s factual findings for clear error and its conclusions of law de
novo. See United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008).
      To demonstrate ineffective assistance of counsel for failure 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 performance, the
movant would have timely appealed. Roe v. Flores-Ortega, 528 U.S. 470, 476-77,
484, 486 (2000). Counsel’s performance is deficient if he disregards his client’s
wishes concerning filing an appeal or if he fails to consult with his client on the
matter when counsel has a constitutionally imposed duty to do so. Id. at 477-78.
      Contreras has failed to show that his trial counsel’s performance was
constitutionally deficient. The record evidence supports the district court’s
rejection of Contreras’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 Contreras did not timely
request that counsel pursue an appeal. The evidence likewise shows that
counsel fulfilled his duty to consult with Contreras concerning an appeal.
      Contreras 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 notice of appeal and consulting with him concerning his appellate
rights. Consequently, the judgment of the district court is AFFIRMED.




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