UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50852
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LYNN DALE MOORING,
Petitioner-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(W-96-CA-423)
June 7, 1999
Before WIENER and PARKER, Circuit Judges, and LAKE, District
Judge.*
PER CURIAM:**
Lynn Mooring (“Mooring”), federal inmate # 56290-080, appeals
the denial of his motion to vacate sentence filed pursuant to 28
U.S.C. § 2255. We affirm.
*
District Judge for the Southern District of Texas, sitting by
designation.
**
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this opinion should not be published and is not precedent except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.
1
In 1992, Mooring pleaded guilty to possession of a listed
chemical in violation of 21 U.S.C. § 841(d). Mooring’s guideline
sentence range was calculated at 360 months to life, but the
maximum term of imprisonment under § 841(d) is ten years. Mooring
therefore received a 120-month prison term. Although clearly
advised of his right to appeal by the district court, Mooring filed
no direct appeal.
In October 1996, Mooring filed the instant pro se § 2255
motion to vacate, claiming, inter alia, that his attorney performed
ineffectively by failing to comply with his request that he file a
notice of appeal.1 The district court held a hearing on this
issue, at which Mooring, Mooring’s mother, Betty Elliot, and
Mooring’s trial attorney, Dick Kettler testified. The district
court found that the testimony did not support Mooring’s claim that
he requested Kettler to file a notice of appeal, and that there was
no specific discussion about a fee arrangement for Kettler to
handle an appeal. The district court further found that Mooring
expressed an interest in appeal, but Kettler advised against it
because, in his professional judgment, Mooring could possibly get
a higher sentence. Based on these findings, the district court
concluded that Mooring had not been deprived of effective
assistance of counsel.
On appeal from the denial of a § 2255 motion, this court
1
Mooring made other claims which the district court denied.
However, our grant of Certificate of Appealability was limited to
his claim of ineffective assistance of counsel based on the failure
to file a notice of appeal.
2
reviews the district court’s factual findings for clear error and
its legal conclusions de novo. United States v. Guerra, 94 F.3d
989, 992 (5th Cir. 1996).
Mooring contends in his first point of error that the district
court erred in finding that Kettler was not ineffective for failing
to file a notice of appeal. The district court’s finding amounted
to a determination that Mooring knowingly waived his right to
appeal. “Waiver of the right to appeal ‘requires that there be
knowledge of the right to appeal and a failure to make known the
desire to exercise that right.’” United States v. Gipson, 985 F.2d
212, 216 (5th Cir. 1993)(citation omitted). The trial court
informed Mooring in open court, on the record, that he had the
right to appeal and specifically that he was required to file a
notice of appeal within 10 days. The district court’s implicit
finding that Mooring had knowledge of the right to appeal is not
clearly erroneous.
There is no dispute that Kettler and Mooring discussed the
possibility of an appeal after sentencing and that Kettler advised
against pursuing an appeal. However, a factual dispute existed
concerning whether or not Mooring made known his desire to exercise
his right to appeal. Only Kettler and Mooring were privy to that
discussion and there exists no record establishing what was said.
The district court’s fact finding that Mooring failed to make known
his desire to appeal, based on live witness testimony and the
concomitant credibility determinations, was not clearly erroneous.
See Gipson, 985 F.2d at 216.
3
In his second point of error, Mooring contends that the
district court erroneously relied on the fact that Mooring and
Kettler had not discussed fees for an appeal because Mooring had
the right to an appointed attorney if he was unable to afford one.
The absence of a fee discussion was one factor, among several, that
the district court considered in reaching the conclusion that
Mooring had not requested Kettler to file an appeal. If Mooring
had discussed an appellant fee arrangement with Kettler, it would
have been some evidence that Mooring had communicated to Kettler
his desire to appeal. See Gipson, 985 F.2d at 216-17 (considering
fee discussion between attorney and appellant as one factor
indicating that no waiver occurred); see also United States v.
Green, 882 F.2d 999 (5th Cir. 1989)(considering fee discussion with
attorney’s associate, as well as other factors, in concluding that
Green waived his right to appeal). We hold that the district
court’s consideration of the absence of an appellate fee
arrangement in deciding the question of waiver was not error.
We therefore affirm the district court’s denial of Mooring’s
§ 2255 motion to vacate sentence.
AFFIRMED.
4
United States v. Mooring
Combined Opinion