                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 25 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No. 05-55209

               Plaintiff - Appellee,             D.C. Nos. CV-03-01309-DOC
                                                           CR-02-00009-DOC
   v.

 MANUEL NAVARRO,                                 MEMORANDUM *

               Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Central District of California
                      David O. Carter, District Judge, Presiding

                                                          **
                             Submitted January 11, 2010

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Federal prisoner Manuel Navarro appeals from the district court’s order

denying his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C.

§ 2253, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

sko/Research
        Navarro contends that his trial attorney was ineffective for failing to advise

him of his right to appeal. Because Navarro has not shown that a rational

defendant would want to appeal, or that he reasonably demonstrated to counsel that

he was interested in appealing, he has failed to show that he is entitled to relief.

See Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000); see also Strickland v.

Washington, 466 U.S. 668, 687-88 (1984).

        Navarro also contends that the district court erred by failing to hold an

evidentiary hearing on this issue. Based on the record available to the district

court, including trial counsel’s declaration, and the transcripts of the plea colloquy

and the October 7, 2002 hearing, the district court did not abuse its discretion in

resolving Navarro’s claims without holding a hearing. Where, as here, “the motion

and the files and records of the case conclusively show that the prisoner is entitled

to no relief,” an evidentiary hearing is not required. See 28 U.S.C. § 2255(b).

        We construe Navarro’s additional arguments as a motion to expand the

certificate of appealability. So construed, the motion is denied. See 9th Cir. R.

22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per

curiam).

        AFFIRMED.




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