                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         January 5, 2006
                                  TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                    No. 05-2068
       v.                                              D. New Mexico
 IGNACIO ALVAREZ-PEREZ,                          (D.C. No. CIV-04-384 BB/DJS
                                                    and CR-02-501 BB/DJS)
                Defendant - Appellant.




                                         ORDER


Before HARTZ, Circuit Judge, SEYMOUR, Senior Circuit Judge, and
McCONNELL, Circuit Judge.


      Ignacio Alvarez-Perez was convicted by a jury in the United States District

Court for the District of New Mexico on three drug charges. On April 2, 2003, he

was sentenced to 151 months in federal prison. On April 5, 2004, he filed a

motion for a writ of habeas corpus under 28 U.S.C. § 2255, arguing that he was

denied effective assistance of counsel when his trial counsel failed to appeal his

conviction despite his instructions to do so. The district court dismissed the

motion with prejudice and denied a certificate of appealability (COA), see

28 U.S.C. § 2253(c)(1) (requiring COA). We deny a COA for substantially the

same reasons.
I.    BACKGROUND

      The magistrate judge in the § 2255 proceeding held an evidentiary hearing

at which Mr. Alvarez-Perez and his trial counsel, Paul Rubino, testified.

Mr. Alvarez-Perez testified that he told Mr. Rubino after the sentencing hearing

that he “was not comfortable with the amount of time that I had been given” and

that “I wanted for him to file an appeal for me.” Supp. Vol. I at 8. He also

testified that afterwards he was under the impression that Mr. Rubino had filed an

appeal. Mr. Rubino’s testimony was to the contrary. Although he agreed that he

and Mr. Alvarez-Perez had discussed filing an appeal, he said that he had told

Mr. Alvarez-Perez that there was no basis for an appeal, and that Mr. Alvarez-

Perez’s response had been “‘don’t file an appeal if there is no basis.’” Id. at 22.

      The magistrate judge believed Mr. Rubino: “Having heard the testimony of

the witnesses and observing their demeanor during the hearing, I find trial

counsel’s testimony credible.” Magistrate Judge’s Proposed Findings and

Recommended Disposition at 3. The magistrate judge noted Mr. Alvarez-Perez’s

concession that “perhaps, [Mr. Rubino] did not understand me” and observed that

“[a]t best, this is a case where Alvarez-Perez failed to clearly convey his wishes

that Rubino file an appeal.” Id. The magistrate judge recommended that

Mr. Alvarez-Perez’s § 2255 motion be denied. The district court adopted the




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magistrate judge’s proposed findings and recommended disposition, dismissing

the habeas motion.

II.   DISCUSSION

      “A certificate of appealability may issue . . . only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). This means that the applicant must show “that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

      The framework for evaluating an ineffective-assistance-of-counsel claim

based on counsel’s failure to file a notice of appeal is set forth in Roe v. Flores-

Ortega, 528 U.S. 470 (2000). A defendant making such a claim must show that

“counsel’s representation fell below an objective standard of reasonableness” and

that “counsel’s deficient performance prejudiced” him. Id. at 476-77 (internal

quotation marks omitted). If trial counsel has discussed the possibility of appeal

with the defendant, he “performs in a professionally unreasonable manner only by

failing to follow the defendant’s express instructions with respect to an appeal.”


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Id. at 478. Failure to follow the defendant’s express instructions to file an appeal

also establishes prejudice. Id. at 484.

      On appeal Mr. Alvarez-Perez argues that there was a basis for appeal

because Mr. Rubino joined in a co-defendant’s motion for a new trial. But that

motion was denied, and Mr. Alvarez-Perez has not bothered to argue the merits of

the issues raised by the motion. He has not shown that Mr. Rubino performed

deficiently in advising that there were no grounds for appeal, and the magistrate

judge found that Mr. Alvarez-Perez accepted Mr. Rubino’s advice. We review

the district court’s factual findings for clear error. English v. Cody, 241 F.3d

1279, 1282 (10th Cir. 2001). We review credibility findings with even greater

deference–“[W]hen a trial judge’s finding is based on his decision to credit the

testimony of one of two or more witnesses . . . that finding . . . can virtually never

be clear error.” Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985).

The magistrate judge’s findings here are not clearly erroneous. Therefore, no

reasonable jurist could determine that the district court erred in denying

Mr. Alvarez-Perez’s ineffectiveness claim.

      We DENY a COA and dismiss the appeal.

                                          ENTERED FOR THE COURT


                                          Harris L Hartz
                                          Circuit Judge


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