Ross v. Johnson ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40490
Summary Calendar
JOHN HOBERT ROSS
Petitioner-Appellant
v.
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
(6:93-CV-596)
March 15, 1996
Before WISDOM, DAVIS, and STEWART, Circuit Judges,
PER CURIAM:*
Petitioner-appellant, John Hobert Ross, appeals the dismissal of his petition for habeas
corpus relief, in which he alleged that his trial attorney was ineffective for failing to perfect an appeal
on his behalf. We have reviewed the record and the reasons for dismissal given by the district court,
and find no reversible error.
We first hold that the district court properly accorded a presumption of correctness to the
state trial court’s factual findings on this matter. Contrary to Ross’s assertion, the district court need
*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published, and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
not review the “whole” record of the state court proceedings. Instead, the district court need only
review the portions of the record that actually formed the basis of the trial court’s factual findings,
and determine if that portion of the record “as a whole” supports the conclusions.1 Over the course
of its two hearings on this matter, the district court reviewed all the relevant portions of the state trial
court record, and properly found that those portions of the state court record supported that court’s
factual determinations regarding Ross’s waiver of his right to appeal.
Additionally, we find that the district court applied the correct legal standard to those factual
findings. The district court properly relied on this court’s holding in Childs v. Collins,2 in which the
court held that “the duty of counsel to perfect an appeal on behalf of a convicted client arises, not
upon conviction, but when the client makes known to counsel that he wishes to appeal.”3 Ross’s
assertion that a defendant must make an affirmative waiver of his right to appeal is contrary to the
precedent of Childs.4 The state court’s findings of fact indicate that Ross was fully informed of his
right to appeal, but did not ask his counsel to do so. Accordi ngly, the district court properly
determined that Ross had waived his right to appeal, and had not suffered from ineffective assistance
1
28 U.S.C. § 2254(d)(8); Anderson v. Texas, 507 F.2d 105 (5th Cir. 1975).
2
995 F.2d 67, 69 (5th Cir.), cert. denied, 114 S. Ct. 613 (1993).
3
Id. at 69.
4
Ross argues that the proper legal standard is set forth in Martin v. State of Texas, 694 F.2d
423 (5th Cir. 1982), in which this court determined that a defendant did not implicitly waive his right
to appeal where the defendant had been lead to believe that counsel was only available if he could
afford it. Id. at 426. Martin is distinguishable from the present case, however, because unlike the
defendant in Martin, Ross was properly informed of his right to appeal. As such, an implicit waiver
may be presumed from his failure to tell his counsel he wished to pursue an appeal. See Childs, 995
F.2d at 69 (an appeal is a positive right in that an appellant may not let the matter rest and then claim
that he did not waive his right to appeal).
2
of counsel. We AFFIRM the dismissal of Ross’s petition.
3