                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-2561
                                   ___________

Monee Yodprasit,                        *
                                        *
                   Appellant,           *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
United States of America,               *
                                        *
                    Appellee.           *
                                   ___________

                             Submitted: May 16, 2002

                                  Filed: July 9, 2002
                                   ___________

Before LOKEN, HEANEY and MURPHY, Circuit Judges.
                          ___________

HEANEY, Circuit Judge.

       Monee Yodprasit appeals from the district court’s1 denial of his petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2255. He argues that the district court




      1
       The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
erred when it determined that he failed to instruct his attorney to file a direct appeal.2
We affirm.

I.    BACKGROUND

      Yodprasit was convicted of drug trafficking offenses and was sentenced to 240
months in prison on April 19, 1999. Nearly a year later, Yodprasit filed a notice of
appeal, which this court dismissed as untimely. Yodprasit then sought post-
conviction relief under § 2255, claiming he received ineffective assistance of counsel
because his trial attorney failed to file a timely appeal pursuant to his request.

       The district court held an evidentiary hearing on Yodprasit’s petition on
December 15, 2000. Yodprasit’s trial attorney testified that he and Yodprasit
discussed the possibility of an appeal early in the trial. The attorney also testified that
after Yodprasit was sentenced, he advised Yodprasit to submit to a “clear out”
interview with the government with the hope of obtaining a Rule 35 sentence
reduction for providing substantial assistance. At this time the attorney also advised
Yodprasit that he should not appeal because any appeal would be unsuccessful and
would diminish the possibility of receiving a Rule 35 sentence reduction. The
attorney testified that Yodprasit agreed with his proposal to “pursue the Rule 35 route
as opposed to filing an appeal.” Section 2255 Hearing Transcript at 5.




      2
       Yodprasit also contends that the district court erred when it held that he was
not deprived of effective assistance of counsel despite his attorney’s failure to object
to the drug quantities attributed to him at trial. No certificate of appealability was
granted on this issue, and we decline to issue one now. Accordingly, we need not
address this argument further. See Fields v. United States, 201 F.3d 1025, 1026 n.
2 (8th Cir. 2000) (holding that issues beyond scope of certificate of appealability are
not properly before court).


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       Yodprasit’s attorney went on to testify that he wrote to Yodprasit on April 22,
1999, to review Yodprasit’s right to appeal and communicate his belief that there
were no legal grounds to appeal the conviction or sentence. In the letter, the attorney
also stated as follows: “Nevertheless it is your right [to appeal] and it has not been
waived. If you do wish to pursue an appeal, please contact me at your earliest
convenience.” Appellant’s Appendix at 121. According to the attorney, Yodprasit
never contacted him to request that he file a direct appeal.

       On April 23, 1999, Yodprasit submitted to a “clear out” interview with an
Assistant United States Attorney. Yodprasit’s attorney testified that he believed that
Yodprasit’s participation in the “clear out” interview meant that Yodprasit did not
want to file an appeal. After the interview, Yodprasit’s attorney wrote to the
Assistant United States Attorney to request that Yodprasit’s sentence be reduced in
return for his cooperation; however, the Government never filed a Rule 35 motion.



       Yodprasit, in contrast, testified that he couldn’t read the letter his attorney sent
him on April 22, 1999, although he admitted that at that time he intentionally gave
people the impression that he could read and write. According to Yodprasit, he told
his attorney he wanted to file an appeal, and assumed that his attorney would do so.
Yodprasit also testified that he did not realize that an appeal had not been filed until
after the deadline for filing an appeal had passed.

       The district court ultimately denied Yodprasit’s request for relief. The court
found that Yodprasit failed to show that he instructed his attorney to file an appeal
after his sentence was entered. The court determined that Yodprasit’s contention that
he requested an appeal was not credible because it conflicted with his testimony that
he “understood” an appeal would automatically be taken. The court also determined
that Yodprasit’s contention was further weakened by a July 9, 1999 letter to his
attorney, in which Yodprasit requested documents for use in support of his § 2255

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petition but failed to mention a direct appeal in any way. Ultimately, the court
determined that Yodprasit’s testimony at the hearing was not as credible as his
attorney’s.

II.    DISCUSSION

      “An ineffective assistance of counsel claim presents a mixed question of law
and fact.” Barger v. United States, 204 F.3d 1180, 1181 (8th Cir. 2000). “The
ineffective assistance of counsel claim is reviewed de novo, while the district court’s
factual findings are reviewed for clear error.” Id. (citation omitted). A district court’s
credibility determinations are entitled to deference. Id.

       A “counsel’s failure to file a notice of appeal when so instructed by the client
constitutes ineffective assistance of counsel for the purpose of section 2255.” Estes
v. United States, 883 F.2d 645, 648 (8th Cir. 1989) (citations omitted). A showing
of actual prejudice is not necessary. Barger, 204 F.3d at 1182 (citing Holloway v.
United States, 960 F.2d 1348, 1356-57 (8th Cir. 1992)). Nevertheless, for a petitioner
to succeed, he must show that he made his desire to appeal evident to his attorney.
See Barger, 204 F.3d at 1182. “A bare assertion by the petitioner that [he] made a
request is not by itself sufficient to support a grant of relief, if evidence that the fact-
finder finds to be more credible indicates the contrary proposition.” Id. (citation
omitted).

      In the present case, Yodprasit and his attorney have proffered conflicting
testimony. Yodprasit claims he expressed his desire to appeal, while his attorney
claims that Yodprasit decided to forgo an appeal to pursue the possibility of a Rule
35 sentence reduction. Yet, the district court determined that Yodprasit’s attorney’s
testimony was more credible. This determination is supported by several facts. First,
Yodprasit participated in the “clear out” interview pursuant to the advice of his
attorney. Although cooperating and pursuing an appeal are not mutually exclusive

                                            -4-
strategies, it is unlikely that Yodprasit would appeal while submitting to a “clear out”
interview because evidence garnered during the interview could be used in the event
Yodprasit was granted a new trial. Further, Yodprasit wrote to his attorney and
requested documents to support his § 2255 petition without mentioning his attorney’s
failure to file a direct appeal. Finally, Yodprasit never responded to his attorney’s
April 22, 1999 letter, which expressly stated that no appeal would be pursued without
a request from Yodprasit.

       In contrast, Yodprasit offers no evidence to support his claim other than his
self-serving testimony. There is simply no evidence to suggest that the district court
clearly erred when it determined that Yodprasit failed to ask his attorney to file an
appeal after being consulted about that possibility.

      The judgment is affirmed.

      A true copy.

             Attest:

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




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