IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40960
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORLANDO VIVEROS ANGULO, also known as John Doe,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-99-CV-484
USDC No. C-98-CR-314-1
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December 5, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Orlando Viveros Angulo, federal inmate #32932-077, appeals
the district court’s denial of his 28 U.S.C. § 2255 motion.
Angulo was granted a certificate of appealability (“COA”) to
proceed on the issue whether his attorney was ineffective for
failing to appeal his conviction or preserve Angulo’s right to
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that this opinion should not be published and is not precedent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.
No. 01-40960
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A jury convicted Angulo of distribution of 5.55 grams of
cocaine base. The district court sentenced him to 78 months’
imprisonment and five years’ supervised release.
In a 28 U.S.C. § 2255 motion, Angulo alleged that his trial
attorney provided ineffective assistance because counsel did not
inform him that “he had a right to appeal or could appeal.” In a
supplement to his motion, Angulo alleged that he wanted to appeal
but trial counsel abandoned him without perfecting an appeal. In
a motion for leave to file an out-of-time appeal brief, Angulo
alleged that he told counsel that he wanted to file an appeal.
The district court appointed counsel to represent Angulo in
the 28 U.S.C. § 2255 proceedings and conducted evidentiary
hearings. Based on the evidence presented at the hearings, the
district court found that Angulo did not ask counsel to file a
notice of appeal, did not give counsel instructions about an
appeal, and did not request an appeal of the court and denied
Angulo’s 28 U.S.C. § 2255 motion.
Angulo contends that counsel did not provide advice
regarding the right to appeal and did not file a notice of appeal
on his behalf. He contends that counsel was per se ineffective.
We review the district court findings of fact for clear
error and its conclusions of law de novo. United States v.
Faubion, 19 F.3d 226, 228 (5th Cir. 1994). We will not
substitute our reading of the evidence for that of the district
court when a finding made in a 28 U.S.C. § 2255 proceeding rests
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upon a credibility determination after an evidentiary hearing.
United States v. Nixon, 881 F.2d 1305, 1310 (5th Cir. 1989).
A claim of constitutionally ineffective counsel based on the
failure to file a notice of appeal is analyzed under the two-
prong Strickland v. Washington, 466 U.S. 668 (1984), test. Roe
v. Flores-Ortega, 528 U.S. 470, 476-77 (2000). “Counsel 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. Counsel’s performance is
deficient if counsel disregards his client’s wishes concerning
filing an appeal or if counsel fails to consult with the client
on the matter when counsel has a constitutionally imposed duty to
do so. Id. at 477-78.
Angulo has not challenged the district court’s findings that
he did not ask counsel to file a notice of appeal and did not
give counsel instructions about an appeal. Angulo has not met
his burden of providing the transcript of the July 31, 2001,
hearing. FED. R. APP. P. 10(b)(2); Powell v. Estelle, 959 F.2d
22, 26 (5th Cir. 1992). He has not shown that the district
court’s findings are clearly erroneous. Faubion, 19 F.3d at 228.
He has not shown deficient performance and thus has not
established ineffective assistance on his claim that counsel did
not preserve his right to appeal. Flores-Ortega, 528 U.S. at
476-78; Strickland, 466 U.S. at 697.
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Angulo’s other COA issues were carried with the case. To
obtain a COA, Angulo must show that jurists of reason would find
it debatable whether his 28 U.S.C. § 2255 motion states a valid
claim of the denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000).
By failing to assert them in his COA motion to this court,
Angulo has abandoned his claims that counsel did not investigate
witnesses, investigate Angulo’s use of a false name, investigate
and challenge the obstruction of justice increase, obtain a
favorable plea bargain, inform Angulo of the benefit derived from
voluntary deportation, challenge the order that Angulo be
deported, and emphasize Angulo’s lack of a criminal record.
Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
Angulo asserts that counsel was ineffective because he did
not advise Angulo of benefits, such as the safety-valve
provision, that might be obtained by pleading guilty and by
cooperating with the Government. Angulo’s general and
conclusional allegations do not establish ineffective assistance.
Lincecum v. Collins, 958 F.2d 1271, 1279-80 (5th Cir. 1992).
Furthermore, Angulo has not shown that counsel was ineffective
for failing to advise him of the benefits associated with taking
a plea bargain because Angulo’s testimony demonstrated that he
would not have pleaded guilty. Strickland, 466 U.S. at 687, 697.
Angulo would not have qualified for the safety-valve provision of
U.S.S.G. § 5C1.2(a)(5); thus, he has not shown that counsel was
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ineffective for failing to argue for its application.
Strickland, 466 U.S. at 687, 697. Angulo has not made the
showing required to obtain a COA. Slack, 529 U.S. at 484-85.
Accordingly, a COA is DENIED.
AFFIRMED; COA DENIED.