USCA1 Opinion

       [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]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, 466 U.S.  668, 698 (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, 987 F.2d 48, 53 (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, 162

  F.3d 456, 459 (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,

  180 F.3d 648, 656 (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.