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

                                                FILED
                                                                November 12, 2009
                               No. 08-10438
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

GREGORY JOY, also known as Greg Joy,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 5:06-CR-23-7
                            USDC No. 5:07-CV-137


Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
      Gregory Joy, federal prisoner # 34589-177, pleaded guilty to possessing
less than 50 grams of crack cocaine with intent to distribute it, and aiding and
abetting.   The plea agreement contained a provision waiving his right to
challenge his conviction or sentence on appeal or in a collateral proceeding,
though he reserved the right to appeal a sentence exceeding the statutory
maximum or based on an error of arithmetic, to challenge the voluntariness of


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                    No. 08-10438

the plea or the appeal waiver, and to bring a claim of ineffective assistance of
counsel. He was sentenced to a prison term of 200 months, which was within the
guidelines range.
         Joy did not file a notice of appeal, but he instead sought to vacate his
sentence pursuant to 28 U.S.C. § 2255. The district court denied relief and
declined to issue a certificate of appealability. This court, however, granted Joy’s
request for a certificate of appealability on the issues whether his counsel
“rendered ineffective assistance by failing to file a notice of appeal on Joy’s
behalf and whether Joy was entitled to an evidentiary hearing on this claim.”
         After Joy filed his appellant brief, we granted the Government’s motion to
remand the case to the district court for an evidentiary hearing. Following the
evidentiary hearing, the case was returned to this court and briefing resumed.
The Government has now filed its appellee brief, and Joy has not filed a reply
brief.
         At the evidentiary hearing, Joy and his former attorney gave conflicting
accounts about whether Joy asked the lawyer to file a notice of appeal.
According to Joy, in the courtroom after he was sentenced, he told his attorney
that he would like an appeal and his attorney responded that he would get back
to Joy. Joy, however, admitted that although he knew that he had only a 10-day
window to file a notice of appeal, he did not attempt to contact his lawyer for
several months and that he did not tell his family about his wish to appeal. His
attorney testified that immediately after sentencing, he and Joy discussed the
possibility of an appeal and that he advised against bringing an appeal; he did
not remember Joy asking for an appeal and that, if Joy had asked for an appeal,
counsel would have perfected it. The magistrate judge found that Joy did not
establish by a preponderance of the evidence that he instructed counsel to
appeal. The district court adopted the magistrate judge’s findings.
         We review factual findings for clear error. United States v. Cavitt, 550
F.3d 430, 435 (5th Cir. 2008); see also United States v. Mays, 466 F.3d 335, 342

                                          2
                                 No. 08-10438

(5th Cir. 2006). On the record before the magistrate judge, the finding that the
preponderance of the evidence did not support Joy’s contention that he
instructed his lawyer to file a notice of appeal is plausible and, thus, is not
clearly erroneous. See United States v. London, 568 F.3d 553, 561 (5th Cir.)
petition for cert. filed (Aug. 11, 2009) (No. 09-5844).   Because Joy has not
established that he directed his lawyer to file a notice of appeal, he cannot
succeed on his claim that counsel was ineffective for failing to carry out the
request. Cf. Roe v. Flores-Ortega, 528 U.S. 470, 477, 486 (2000) (explaining that
counsel’s failure to abide by his client’s request to file a notice of appeal
constitutes ineffective assistance even without a showing that the appeal would
be meritorious). Nor was it clearly erroneous for the magistrate judge to decline
to find that Joy’s attorney failed to consult with him given his attorney’s
testimony that he discussed the possibility of an appeal with Joy and had
advised against such an appeal. Cf. id. at 480.
      The district court’s judgment denying Joy’s motion to vacate his sentence
is AFFIRMED.




                                       3
