U.S. v. Bacon

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Patrick BACON…

Court: United States Court of Appeals, Ninth Circuit

Date published: Dec 9, 2002

52 F. App'x 379 (9th Cir. 2002)

Opinion

52 Fed.Appx. 379 (9th Cir. 2002) UNITED STATES of America, Plaintiff-Appellee, v. Thomas Patrick BACON, Defendant-Appellant. No. 01-36029. D.C. Nos. CR-99-02003-WFN, CS-01-00043-WFN. United States Court of Appeals, Ninth Circuit. December 9, 2002

Submitted December 2, 2002. ^*

* This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielsen, Chief Judge, Presiding.

Before GOODWIN, TROTT, and GRABER, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Thomas Patrick Bacon appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion challenging his 130-month sentence imposed following his 1999 guilty-plea convictions to manufacturing methamphetamine and felon in possession of a firearm, in violation of 21 U.S.C. §§ 841(a)(1) and 942(g)(1). We have jurisdiction under to 28 U.S.C. § 2253. We review de novo a district court's denial of a § 2255 motion, see United States v. Chacon-Palomares, 208 F.3d 1157, 1158 (9th Cir.2000), and we affirm.

Bacon contends that the district court erred in denying his motion because counsel was ineffective for failing to file a direct appeal when Bacon notified him to do so after sentencing. This claim is not persuasive. First, Bacon does not establish his counsel's performance was objectively unreasonable. See Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (concluding that pleading guilty and receiving the bargained-for sentence are highly relevant factors indicating objectively reasonable performance). Second, simply asserting an interest in an appeal is insufficient to establish prejudice. Id. at 486 (demonstrating prejudice requires showing that had defendant received reasonable advice from counsel about the appeal he would have instructed counsel to file an appeal). Accordingly, the district court's denial of Bacon's

Page 380.

§ 2255 motion was proper. ¹

1 We decline to review Appellant's other claims of error because the district court did not grant a certificate of appealability on these issues. See 28 U.S.C. § 2253(c); Hiivala v. Wood, 195 F.3d 1098, 1107 (9th Cir.1999) (per curiam) (holding that the AEDPA limits the scope of appellate review to issues specified in the certificate of appealability). Appellant's outstanding motions are denied.

AFFIRMED.