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this opinion should not be published and is not precedent except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