                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-3384
                                     ___________

Trent Allworth Parsons,                   *
                                          *
      Petitioner - Appellant,             *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Southern District of Iowa.
United States of America                  *
                                          *
      Respondent - Appellee.              *
                                     ___________

                                Submitted: September 28, 2007
                                    Filed: October 2, 2007
                                    ___________

Before LOKEN, Chief Judge, WOLLMAN and RILEY, Circuit Judges.
                             ___________

LOKEN, Chief Judge.

      Trent Parsons pleaded guilty to methamphetamine manufacturing offenses.
Before sentencing, Parsons signed an agreement providing that he “knowingly and
expressly waives any and all rights to appeal [his] conviction and sentence in this
case.” The district court sentenced him to 210 months in prison. Parsons did not
appeal but timely filed a motion for post-conviction relief under 28 U.S.C. § 2255,
arguing that he is entitled to relief because of trial counsel's ineffective assistance in
disregarding Parsons's request to appeal the sentence. The district court1 denied the

      1
        The HONORABLE RONALD E. LONGSTAFF, United States District Judge
for the Southern District of Iowa.
motion but granted a certificate of appealability on this issue. We review the court's
factual findings for clear error and the ultimate issue of ineffective assistance de novo.
See Yodprasit v. United States, 294 F.3d 966, 969 (8th Cir. 2002). We affirm.

       In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court confirmed
that the familiar two-part test applies to claims that counsel was constitutionally
ineffective in failing to file a notice of appeal. Defendant must show “(1) that
counsel's representation fell below an objective standard of reasonableness, and (2)
that counsel's deficient performance prejudiced the defendant.” Id. at 476-77, quoting
Strickland v. Washington, 466 U.S. 668, 688 (1984). Because the post-conviction
relief sought is a belated appeal, the prejudice inquiry is correspondingly limited.
“[A] lawyer who disregards specific instructions from the defendant to file a notice
of appeal acts in a manner that is professionally unreasonable[;] defendant is entitled
to a new appeal without showing that his appeal would likely have had merit.” Flores-
Ortega, 528 U.S. at 477 (quotation omitted).

       If the defendant did not clearly request or instruct his trial attorney to appeal,
the Court in Flores-Ortega explained that the court considering a claim of ineffective
assistance must then determine whether counsel consulted with the defendant about
an appeal and, if not, whether the failure to consult was unreasonable. “[C]ounsel has
a constitutionally imposed duty to consult . . . when there is reason to think either (1)
that a rational defendant would want to appeal (for example, because there are
nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in appealing.” 528 U.S. at 480. “[T]o
show prejudice in these circumstances, a defendant must demonstrate that there is a
reasonable probability that, but for counsel's deficient failure to consult with him
about an appeal, he would have timely appealed.” Id. at 484.

      Here, the district court properly held an evidentiary hearing on this issue.
Parsons testified that, when the court pronounced his sentence, Parsons told his

                                           -2-
attorney, “We've got to appeal this.” When asked if counsel responded, Parsons
testified, “I don't believe he did. [The prosecutor ] was on his way over to our bench
to discuss some other issues, and [counsel] was getting ready to approach him and
visit with him briefly.” Parsons admitted that he did not raise the subject of an appeal
again. Four members of Parsons's family who were sitting in the courtroom testified
that they heard him say he wanted to appeal. Counsel testified that it is his practice
to file an appeal when requested or instructed to do so, but he did not hear Parsons
request an appeal. The district court found that Parsons made the request but also
found that counsel did not hear it. Therefore, the court concluded, counsel was not
guilty of ineffective assistance for failing to obey a client's request to file an appeal.
Turning to the additional inquiry mandated by Flores-Ortega, the court concluded that
counsel was not professionally unreasonable in failing to consult with Parsons about
an appeal because counsel saw no rational basis for an appeal and because Parsons
had waived his right to appeal in writing and therefore counsel had no reason to think
that Parsons would want to file an appeal.

       On appeal, Parsons argues that the district court's finding that he told counsel,
“we've got to appeal this,” without more, entitles him to post-conviction relief. He
asserts that “[a] criminal defendant is not required to reaffirm his appeal demand and
receive confirmation that his attorney understood his appeal demand.” In this rather
unusual situation, we conclude that this contention is inconsistent with the analysis
mandated by the Supreme Court in Flores-Ortega.

        The district court expressly found that counsel did not hear Parsons's request.
Therefore, Parsons's attorney did not disregard his client's request or instruction to
appeal. The ineffective assistance inquiry focuses on whether counsel provided
constitutionally reasonable representation. Counsel cannot act on an instruction that
is not received, either orally or in writing. Of course, depending on the circumstances,
counsel's claim that he did not hear an oral request, or did not receive a written
request, may not be credible. But if counsel's testimony that he did not hear an oral

                                           -3-
request is believed, as in this case, then the ineffective assistance inquiry under Flores-
Ortega proceeds to consider, as the district court did consider, whether counsel's
failure to consult about an appeal constituted ineffective assistance “when the
defendant has not clearly conveyed his wishes one way or the other.” 528 U.S. at 477.
On appeal, Parsons does not challenge as clearly erroneous the district court's finding
that counsel did not hear the request to appeal.2

       Because counsel did not hear the request to appeal, this is a case “where the
defendant neither instructs counsel to file an appeal nor asks that an appeal not be
taken.” Flores-Ortega, 528 U.S. at 478. Thus, the relevant inquiry is whether
counsel's failure to consult about an appeal was ineffective assistance. The Supreme
Court cautioned “that the better practice is for counsel routinely to consult with the
defendant regarding the possibility of an appeal.” Id. at 479. But the Court declined
to adopt a bright-line rule, noting that factors such as those present in this case --
whether defendant pleaded guilty, received the sentence bargained for, and expressly
waived some or all of his appeal rights -- are highly relevant in determining “whether
a rational defendant would have desired an appeal or that the particular defendant
sufficiently demonstrated to counsel an interest in an appeal.” Id. at 480.

       Here, Parsons does not appeal the district court's conclusion that counsel's
failure to consult was not ineffective assistance. Accordingly, the district court's order
dated June 21, 2006, is affirmed.
                         ______________________________


      2
       Parsons faults the district court for inferring from Parsons's testimony that
counsel did not hear the request because he was distracted by the prosecutor,
suggesting that it is more reasonable to infer that counsel suffered from a hearing
impairment. But the reason why counsel did not hear the request is irrelevant. In
determining whether counsel provided ineffective assistance by disregarding a
defendant's oral request to appeal, the relevant fact is that counsel did not hear the
request. Cf. Barger v. United States, 204 F.3d 1180, 1182 (8th Cir. 2000).

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