     Case: 11-30206     Document: 00511766971         Page: 1     Date Filed: 02/24/2012




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

                                                                            FILED
                                                                         February 24, 2012
                                     No. 11-30206
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ANSON HOLLEY, JR.,

                                                  Plaintiff-Appellant

v.

TERRY TERRELL,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CV-1787


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Anson Holley Jr., Louisiana inmate # 530319, appeals
the dismissal of his 28 U.S.C. § 2254 petition, in which he challenged his
conviction for molestation of a juvenile. We granted a certificate of appealability
(COA) on the issue whether Holley’s waiver of his right to appeal comported with
due process.
        Holley asserts that, although the right to appeal from a conviction may not
be guaranteed by the federal constitution, when an appeal is available as a

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-30206    Document: 00511766971      Page: 2   Date Filed: 02/24/2012

                                  No. 11-30206

matter of right, the decision to forgo it must be made by the defendant, not his
lawyer. He contends that the personal right to appeal may be raised separate
and apart from a claim of ineffective assistance of counsel.
      Holley was present at the sentencing hearing when his counsel announced
that Holley would not be appealing, and he stood mute following counsel’s
statement. In light of these two facts, the state habeas court could have
reasonably concluded that Holley's failure to make known his desire to appeal
constituted a knowing waiver or forfeiture of his right to do so. See Harrington
v. Richter, 131 S. Ct. 770, 784, 786-87 (2011); Childs v. Collins, 995 F.2d 67, 69
(5th Cir. 2003). Thus, fairminded jurists could agree that the state habeas
court’s finding that Holley was not entitled to an out of time appeal is consistent
with due process. See Richter, 131 S. Ct. at 786-87; Evitts v. Lucey, 469 U.S. at
393, 405 (1985).
      As Holley’s challenge to the child victim’s testimony is outside the scope
of the COA, we lack jurisdiction to consider it. See Simmons v. Epps, 654 F.3d
526, 535 (5th Cir. 2011), petition for cert. filed (Dec. 27, 2011) (No. 11-8085).
      AFFIRMED.




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