[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 98-2155

EDWARD L. MAHAN, III,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Boudin, Circuit Judge, Campbell, Senior Circuit Judge, and Stahl, Circuit Judge.

Edward L. Mahan, III on brief pro se. Margaret E. Curran, United States Attorney, and Donald C. Lockhart, Assistant United States Attorney, on brief for appellee.

October 7, 1999

Per Curiam. Petitioner Edward L. Mahan, III, appeals pro se from the denial of a 28 U.S.C. 2255 petition. The district court granted a certificate of appealability limited to the issue whether a criminal defendant who was advised of his right to appeal, afforded an opportunity to exercise that right, and still failed to affirmatively exercise that right has in fact waived his right to appeal. Upon review, we affirm. As an initial matter, the district court's factual finding that Mahan failed to ask his attorney to file a notice of appeal is not clearly erroneous. See Strickland v. Washington,

(1984) ("district court findings [made in the course of deciding an ineffective assistance claim] are subject to the clearly erroneous standard of Fed. R. Civ. P. 52(a)"); Lema v. United States,

(1st Cir. 1993) (applying clearly erroneous standard to factual findings underpinning ineffective assistance claim). The evidence, which included counsel's testimony as to his customary practice, supported competing inferences. The district court rejected the credibility of Mahan's testimony, and Mahan provides insufficient reason to second-guess this judgment. Moreover, without deciding whether a request to appeal is always required, compare Ludwig v. United States,

(6th Cir. 1998) ("[T]he constitution is only implicated when a defendant actually requests an appeal, and his counsel disregards that request.") with White v. Johnson,

(5th Cir. 1999) (granting habeas relief where counsel's failure to fully inform petitioner of his appellate rights caused him to lose the opportunity to appeal), we think that the district court appropriately found waiver based on the absence of an affirmative request where, as here: petitioner was twice advised of his right to appeal by the sentencing court; petitioner pled guilty and his claim is limited to the loss of a sentencing appeal; petitioner conceded that counsel advised him that the case law is against him on the sole sentencing issue preserved by counsel; and petitioner was in contact with counsel's office after sentencing, and he could have solicited further advice regarding the merits of an appeal, if necessary to a decision. Affirmed.