                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-3300
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United
      v.                                 * States District Court
                                         * for the District of Nebraska.
Gregorio V. Arvizu,                      *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: October 15, 2001
                                 Filed: November 6, 2001
                                  ___________

Before MURPHY, BEAM, and BYE, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Gregorio Arvizu pled guilty to possession with intent to distribute cocaine in
violation of 21 U.S.C. § 841(a)(1) and was sentenced to fifty two months in prison.
Arvizu filed a notice of appeal fifty seven days later, and the appeal was dismissed
as untimely. Arvizu later moved under 28 U.S.C. § 2255 to vacate his sentence. The
district court1 denied the motion, and we granted a certificate of appealability on the
issue of whether Arvizu’s trial counsel was constitutionally ineffective for not filing
a timely notice of appeal. We now affirm.

      1
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
       Arvizu claims that he is entitled to relief under § 2255 for ineffective assistance
of counsel. He says his attorney told him that there were no credible issues to raise,
that it can be inferred from the circumstances that his counsel refused to file an
appeal, and that he is entitled to an evidentiary hearing if the court finds the record
insufficient to draw the inference. The government submitted an affidavit from
Arvizu’s trial counsel, Steven J. Lefler. Lefler testified in his affidavit that at the
conclusion of the sentencing hearing he had advised his client that he would not
represent him in filing an appeal because there were no appealable issues, but that he
would prepare the appeal papers and give them to Arvizu to file if he wished. Lefler
said that he prepared the appeal papers and delivered them to Arvizu in ample time
for him to look them over, sign and file them by the deadline. He also offered to file
the papers if Arvizu wished, but he never heard back from Arvizu. The government
also points out that Arvizu was informed by the court at sentencing that any notice
of appeal would have to be filed within ten days and he responded that he understood
his rights and the time requirement.

        The district court denied the petition without an evidentiary hearing. It found
that Arvizu’s claim was without merit, that Lefler had consulted with his client, that
Arvizu had never contacted Lefler to advise him that he wanted to proceed with the
appeal, and that Arvizu had understood at the sentencing hearing the time
requirement for appeal. On appeal Arvizu again contends that he directed his counsel
to file an appeal and his counsel failed to do so. The government counters that there
is no evidence that Arvizu asked his attorney to file an appeal after their consultation.

       If an attorney has consulted with his client about an appeal, he will not be
found ineffective unless he fails to follow "express instructions with respect to an
appeal.” Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000). The record shows that
Lefler did consult with his client about his right to file an appeal, and Arvizu
concedes this point on page ten of his brief. There is an absence of any evidence in
the record to counter Lefler's testimony that he never received express instructions

                                           -2-
from Arvizu about his appeal. Arvizu has therefore not made out an ineffective
assistance claim, and he has not shown that the district court was required to hold an
evidentiary hearing.

      For these reasons, we affirm the judgment of the district court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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