IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-30860
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN GRAVES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(96-CV-1637-A)
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December 13, 1996
Before KING, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Kevin Graves, #24037-034, appeals the district court’s
denial of his petition filed under 28 U.S.C. § 2255. Giving
Graves the benefit of the doubt, we construe Graves’ notice of
appeal as a request for Certificate of Appealability (COA), as a
COA is required in § 2255 cases under the Antiterrorism and
Effective Death Penalty Act (the Act), Pub L. 104-132, 110 Stat.
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
1214. See Fed. R. App. P. 22(b); see also the Act at § 102. A
COA may be issued only if the defendant has made a substantial
showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(1).
In his appellate brief, Graves states that he “repeatedly”
asked his counsel to appeal his sentence, but his counsel did not
file a notice of appeal and, as a result, Graves was denied his
right to an appeal. Following Graves’ conviction, the district
court advised him of his right to appeal and to have counsel
appointed for him. In his § 2255 petition, as distinguished from
his brief on appeal from the denial of that petition, Graves did
not state that he had asked his counsel to file an appeal. We
cannot fault the district court, therefore, in failing to conduct
a hearing or in denying his § 2255 petition. Graves has not made
a substantial showing of the denial of a constitutional right on
this point or on the others that he raised. Accordingly, a COA
is denied.
This appeal is DISMISSED.
2