United States v. Donald Ray Ladd

78 F.3d 589 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well. UNITED STATES of America, Appellee, v. Donald Ray LADD, Appellant. No. 95-1663. United States Court of Appeals, Eighth Circuit. Submitted Feb. 20, 1996. Filed Feb. 29, 1996. Before McMILLIAN, BEAM, and LOKEN, Circuit Judges. PER CURIAM. — 1 — Donald Ray Ladd appeals the district court's1 denial of his 28 U.S.C. § 2255 motion. We affirm. — 2 — Ladd pleaded guilty in 1992 to one count of armed bank robbery, in violation of 18 U.S.C. § 2113(a) & (d). At the end of the sentencing hearing, the district court2 informed Ladd of his right to appeal, but no appeal was filed. In his section 2255 motion Ladd asserted, inter alia, that his appointed counsel was ineffective for failing to appeal Ladd's sentence after Ladd directed him in writing to do so. — 3 — The magistrate judge appointed counsel and held two evidentiary hearings. Over Ladd's objections and after conducting a de novo review, the district court denied relief, concluding that in the absence of timely direction from Ladd to appeal, counsel was not ineffective for not appealing Ladd's sentence. — 4 — We have reviewed the record and evidentiary hearing tapes, and conclude the district court's factual findings are not clearly erroneous. See Jones v. Caspari, 975 F.2d 460, 462 (8th Cir.) (standard of review), cert. denied, 506 U.S. 924 (1992). Thus, as the district court found, Ladd knew of his right to appeal and, because he was pleased with his sentence, did not indicate to counsel any interest in an appeal until more than two months after sentencing. In this situation, counsel was not ineffective for not filing a notice of appeal. See Rodriquez v. United States, 964 F.2d 840, 841-42 (8th Cir.1992) (counsel not ineffective where evidence showed defendant did not request counsel to file timely appeal) (per curiam). Where a defendant has not expressed a desire to appeal, no Eighth Circuit authority specifically requires counsel or the sentencing court to inform the defendant of the ten-day limit for filing a notice of appeal. The sentencing court complied fully with Federal Rule of Criminal Procedure 32(c)(5) in this case. — 5 — Accordingly, the judgment is affirmed. Footnotes [1] The Honorable Jimm Larry Hendren, United States District Judge for the Western District of Arkansas, adopting the report and recommendation of the Honorable Beverly R. Stites, United States Magistrate Judge for the Western District of Arkansas [2] The Honorable Morris S. Arnold, then United States District Judge for the Western District of Arkansas, now United States Circuit Judge