               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit


No. 02-2708

                      HECTOR ESCUDERO-APONTE,

                       Petitioner, Appellant,

                                     v.

                             UNITED STATES,

                        Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. José Antonio Fusté,         U.S. District Judge]


                                  Before

                       Boudin, Chief Judge,
                Selya and Lipez, Circuit Judges.



     Joseph C. Laws, Jr. on Memorandum of Law in Support of
Application for Certificate of Appealability for petitioner.



                              May 22, 2003
            Per Curiam. Petitioner Hector Escudero-Aponte ultimately

seeks to appeal from the district court's rejection on the merits

of his ineffective assistance of counsel claims, presented in a

motion pursuant to 28 U.S.C. § 2255.       However, his present request

is for a certificate of appealability ("COA") to appeal from the

denial     of   his   Fed.R.Civ.P.   60(b)(6)   motion.   Specifically,

petitioner sought and was denied permission under Fed.R.App.P.

4(a)(6) to reopen the time to appeal from denial of his § 2255

motion.     Petitioner filed a motion for reconsideration of that

denial pursuant to Fed.R.Civ.P. 60(b)(6).        Petitioner is presently

seeking to appeal from the denial of that motion to reconsider.

I. The COA Standard

            Under 28 U.S.C. § 2253(c), a COA may issue only upon the

"substantial showing of the denial of a constitutional right."

Although petitioner is currently seeking a COA to appeal from a

procedural ruling, the district court's denial of his § 2255 motion

rejected his constitutional claims on the merits.          Therefore, §

2253(c) requires petitioner to "demonstrate that reasonable jurists

would find the district court's assessment of the constitutional

claims debatable or wrong."       Slack v. McDaniel, 529 U.S. 473, 485

(2000).1


     1
       Because petitioner clearly cannot satisfy the merits prong
of the COA standard, we need not address the procedural prong.
That prong is complicated in this case by the two levels of
procedural rulings, under Fed.R.Civ.P. 60(b) and Fed.R.App.P.
4(a)(6).   In the Rule 4(a)(6) context, the Second Circuit has

                                     -2-
II. Ineffective Assistance of Counsel Claims

               "A defendant claiming ineffective assistance of counsel

must    show    (1)       that    counsel's    representation     'fell   below    an

objective standard of reasonableness,' and (2) that counsel's

deficient performance prejudiced the defendant." Roe v. Flores-

Ortega,       528   U.S.     470,    476-77    (2000)    (quoting   Strickland     v.

Washington,         466    U.S.     668   (1984)).       That    test   applies    to

petitioner's claim that counsel was ineffective for failing to file

a notice of appeal. Id. at 477.                 It also applies to petitioner's

claim of ineffective assistance based upon counsel's failure to

file a motion under former Fed.R.Crim.P. 35(b).                  See United States

v. Nino, 878 F.2d 101, 104 (3d Cir. 1989).

               Where, as in this case, the district court dismisses §

2255 claims without holding an evidentiary hearing, "we take as

true the sworn allegations of fact set forth in the petition unless

those   allegations         are     merely    conclusory,    contradicted   by    the

record, or inherently incredible." Ellis v. United States, 313 F.3d

636,    641    (1st   Cir.       2002).       Petitioner's   §   2255   motion    and

accompanying statement allege that immediately after sentencing,

petitioner and members of his family asked counsel to file a motion

for reconsideration of the sentence.                    It is further alleged by



developed a standard for satisfying § 2253(c), which might be
adaptable to the slightly different procedural context in which
this appeal arises. See Eltayib v. United States, 294 F.3d 347,
400 (2d Cir. 2002). However, we need not resolve that issue here.

                                             -3-
petitioner that counsel responded that in his view such a motion

would not be successful.      The motion was not filed.   Although it is

alleged that counsel failed to file a notice of appeal, there is no

specific allegation that petitioner requested counsel to file an

appeal, or even that petitioner desired to appeal his sentence.

A. Failure to File Rule 35(b) Motion

             Petitioner pled guilty to a crime committed in 1986,

before the applicable date of the Sentencing Reform Act (November

1, 1987).2     Therefore, the former version of Fed.R.Crim.P. 35(b)

applied, which provided as follows:

             (b) Reduction of Sentence. A motion to reduce
             a sentence may be made, or the court may
             reduce a sentence without motion, within 120
             days after the sentence is imposed or
             probation is revoked, or within 120 days after
             receipt by the court of a mandate issued upon
             affirmance of the judgment or dismissal of the
             appeal.

Former Rule 35(b).          "[F]ormer Rule 35(b) conferred virtually

unfettered discretion on sentencing courts." United States v.

Angiulo, 57 F.3d 38, 41 n.3 (1st Cir. 1995).

             "No court has held that failure to file . . . a motion

[pursuant     to   former    Rule   35(b)]   automatically   constitutes

ineffective assistance of counsel." Shraiar v. United States, 736



     2
       The 1987 amendment limited the ground for Rule 35(b) relief
to "substantial assistance in the investigation or prosecution of
another person who has committed an offense," added a "government
motion" requirement and extended the time for filing such motion.
See United States v. McAndrews, 12 F.3d 273, 279 (1st Cir. 1993).

                                    -4-
F.2d 817, 818 (1st Cir. 1984).            Courts have held that "where

counsel's promise to file such a motion is followed by counsel's

failure to file it, the court should look further into the matter."

Id.; see United States v. Golden, 854 F.3d 31, 32 (3d Cir. 1988);

United States v. Ackerman, 619 F.2d 285, 288 (3d Cir. 1980).

Petitioner has not alleged that his counsel promised to file a Rule

35(b) motion.     To the contrary, he alleged that his attorney

responded to his request by stating his opinion that such a motion

would not be successful.     The failure to file a Rule 35(b) motion

under these circumstances does not fall below an objective standard

of reasonableness. See Shraiar, 736 F.2d at 818.

           Even   if   petitioner   had    alleged    facts   sufficient    to

satisfy the first prong of the Strickland test, he has not alleged

facts to support a finding of prejudice. Judge Fusté, who presided

at petitioner's sentencing, determined in his denial of the § 2255

motion   that   petitioner   failed   to    "show[]    that   there   was    a

reasonable probability that his sentence would have been reduced

had Attorney Mendez-Lebron filed a timely Rule 35(b) motion."              The

court gave detailed reasons why petitioner was in a "different

position from his co-defendants" and stated that the reduction of

their sentences was no indication that petitioner's Rule 35(b)

motion would have been successful.          Accordingly, petitioner has

failed to show that he was prejudiced by counsel's failure to file

a Rule 35(b) motion.     See United States v. Nino, 878 F.2d 101, 105


                                    -5-
(3d   Cir.   1989)(holding   that   second    Strickland   prong   was   not

satisfied where "district judge who considered the habeas corpus

motion also was the sentencing judge to whom a Rule 35(b) motion

would have been submitted, and he conclusively stated in his

opinion that had a Rule 35(b) motion been submitted to him, he

would not have granted it"); Voytik v. United States, 778 F.2d

1306, 1310 (8th Cir. 1985)(same).         It does not appear that jurists

of reason would find the district court's summary dismissal of this

ineffective assistance of counsel claim to be debatable or wrong.3

B. Failure to File Notice of Appeal

             Petitioner's § 2255 motion and accompanying statement

fail to allege that he specifically requested counsel to file a

notice of appeal.     The Supreme Court has applied the following

standard to such claims of ineffective assistance of counsel:

                  In those cases where the defendant
             neither instructs counsel to file an appeal
             nor asks that an appeal not be taken, we
             believe the question whether counsel has
             performed deficiently by not filing a notice
             of appeal is best answered by first asking a
             separate, but antecedent, question: whether


      3
       Some courts have held that because failure to file a Rule
35(b) motion does not call into question the judgment and sentence,
§ 2255 cannot supply a remedy. See United States v. Hill, 826 F.2d
507, 509 (7th Cir. 1987).    Anticipating that the district court
might so rule, petitioner sought alternative relief pursuant to the
writ of coram nobis under the All Writs Act, 28 U.S.C. § 1651
(1982). See Golden, 854 F.2d at 32.     Because neither party has
challenged the district court's assumption that § 2255 could supply
a remedy if ineffective assistance of counsel had been established,
the question of whether the writ of coram nobis could provide an
alternative remedy is moot.

                                    -6-
            counsel in fact consulted with the defendant
            about an appeal. We employ the term "consult"
            to convey a specific meaning - advising the
            defendant    about    the    advantages   and
            disadvantages of taking an appeal, and making
            a   reasonable   effort   to    discover  the
            defendant's wishes.

Flores-Ortega, 528 U.S. at 478-79.

            In the response by petitioner's former counsel to the

district court's order that counsel give reasons for failing to

file a notice of appeal and Rule 35(b) motion, counsel stated that

1) in his professional judgment there were no grounds for a

successful appeal, and 2) that it would be better to try to

negotiate a plea agreement in the parallel state proceedings.

Counsel further stated that petitioner "agreed with this course of

action, and never instructed the undersigned to file an appeal in

the federal case." The district court, relying upon this statement

by counsel, found that "Petitioner and his counsel made a conscious

decision to pursue state-court negotiations in lieu of an appeal."

Accordingly, the district court found that the failure to file a

notice of appeal did not constitute ineffective assistance of

counsel.

            Counsel's     statement   did   not   contradict   any   specific

allegations by petitioner in his § 2255 motion or his accompanying

statement.      Therefore, the district court did not err in relying

upon that statement to determine whether the failure to file a

notice     of    appeal    fell   below     an    objective    standard    of


                                      -7-
reasonableness.     Based upon the uncontradicted statement of the

attorney, it appears that counsel "consulted" with petitioner about

taking an appeal, within the meaning of Flores-Ortega, supra.

Under such circumstances, "[c]ounsel performs in a professionally

unreasonable manner only by failing to follow the defendant's

express instructions with respect to an appeal." Flores-Ortega, 528

U.S. at 478.      Petitioner has not alleged that counsel failed to

follow his express instructions to file an appeal.          Therefore, we

conclude that jurists of reason would not find the district court's

assessment   of    this   ineffective    assistance    of   counsel   claim

debatable or wrong.

          The request for a COA is denied.            Petitioner's appeal

from the denial of his Rule 60(b)(6) motion is terminated.




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