                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT


                              No. 98-41547
                          USDC No. 5:98-CV-25
                         USDC No. 5:95-CR-12-1

                           Summary Calendar


UNITED STATES,
                                             Plaintiff-Appellee,

                                 versus

LARRY EARL KITCHENS,
                                             Defendant-Appellant.


             Appeal from the United States District Court
                   for the Eastern District of Texas


                            March 23, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Larry     Earl   Kitchens   plead    guilty   to   federal   cocaine

distribution charges.     He now appeals the denial of his 28 U.S.C.

§ 2255 motion, arguing that he received ineffective assistance of

counsel for counsel’s not having filed a notice of appeal.         He was

previously granted a COA on this issue.       Carried with the case is

Kitchens’ request for a COA on the issues of ineffective assistance

regarding a failure to object to the amount of drugs foreseeable to

him and for failure to preserve and raise on appeal, had an appeal




     *
      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this opinion should not be published and is not precedent except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.
been filed, his objection to a two-level increase in sentencing for

his role in the offense.

      Kitchens’ ineffective assistance claim regarding the filing of

an appeal maintains that Kitchens called each of his attorneys

collect within 24 hours of sentencing but that they refused the

charges.1   Kitchens claims that he would have asked them to file an

appeal on his behalf.     Kitchens eventually wrote to his attorneys

regarding this matter, but it was several months after the 10-day

deadline had passed.          The district court considered Kitchens’

allegations as well as affidavits from the defense attorneys, who

claimed that the telephone calls had not taken place. The district

court was persuaded by the attorneys’ statements and denied relief.

Kitchens claims that the court erred in failing to provide him with

an evidentiary hearing.

      While the standard for an evidentiary hearing is more generous

under § 2255 than under § 2254, we find no error warranting

reversal.   A movant is entitled to relief only when the record does

not negate the movant’s version of the facts and if the movant

would be entitled to relief if the allegations are true.           United

States v. Briggs, 939 F.2d 222, 228 (5th Cir. 1991).                Here,

Kitchens would not be entitled to relief based on his claim that

his   attorneys   did   not   accept   collect   calls.   The   record   is

undisputed that Kitchens was advised by the court of his right to

      1
      For the first time on appeal, Kitchens contends that he told
one of his attorneys at sentencing that he wanted to appeal his
sentence. We may not consider facts not presented to the district
court at the time of ruling. See Theriot v. Parish of Jefferson,
185 F.3d 477, 491 n.26 (5th Cir. 1999).

                                       2
file an appeal and the time in which to file it.          Kitchens did not

ask his attorneys to file an appeal for him, which would have

triggered their duty to take action on his behalf.                See United

States v. Clark, 193 F.3d 845, 847 (5th Cir. 1999).              A failure to

accept a collect call, without more, does not state a claim for

ineffective assistance of counsel under the Sixth Amendment. There

was thus no error in the failure to provide a hearing.2

     As   to   Kitchens’   COA   request,    he   has   failed    to   make   a

substantial    showing   of   the   denial   of   a   constitutional    right

regarding these issues.       See 28 U.S.C. § 2253(c)(2).

     DENIAL OF § 2255 MOTION AFFIRMED; COA REQUEST DENIED.




      2
       Our holding is further supported by the Supreme Court’s
recent decision in Roe v. Flores-Ortega, 120 S. Ct. 1029 (2000).
The Court held that counsel has a duty to consult with the
defendant about an appeal only if (1) there are non-frivolous
grounds to appeal or (2) the defendant reasonably demonstrated that
he was interested in appealing. The defendant must further show
that prejudice resulted from counsel’s failure to perform that
duty: he must demonstrate a reasonable probability that he would
have timely appealed.    See Roe, 120 S. Ct. at 1036-38.      Here,
Kitchens did not reasonably demonstrate that he was interested in
appealing, and he had no non-frivolous grounds for appeal.
Moreover, his failure to write to his attorneys for several months
after his sentencing, even though the court advised him that he had
only ten days to appeal, suggests that he would not have otherwise
appealed.


                                      3
