Zack Zafer Dyab v. United States , 546 F. App'x 601 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-1437
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Zack Zafer Dyab
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: October 23, 2013
Filed: December 5, 2013
[Unpublished]
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Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
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PER CURIAM.
In an earlier federal criminal prosecution, Zack Dyab pled guilty (1) to
conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371, and (2) to aiding
and abetting another to engage in a monetary transaction in criminally deprived
property, in violation of 18 U.S.C. §§ 2, 1957. The district court1 sentenced Dyab to
concurrent 60-month and 120-month terms of imprisonment and three years of
supervised release. Dyab never appealed.
One month later, Dyab failed to self-surrender for his sentence which
eventually led to his arrest and subsequent indictment. Upon pleading guilty to the
charge of failing to appear, Dyab received an additional 12 months imprisonment.
Almost a year after his initial sentencing, Dyab filed a motion under 28 U.S.C.
§ 2255, alleging his counsel provided ineffective assistance by failing to file a notice
of appeal. The district court granted Dyab an evidentiary hearing where Dyab
testified that within days after his sentencing hearing, he instructed his attorney to file
a notice of appeal. Dyab’s counsel, corroborated by his legal assistant who witnessed
the exchange, contradicted Dyab’s account, testifying Dyab had “specifically
instructed [his counsel] not to” file a notice of appeal. Crediting the testimonies of
Dyab’s counsel and counsel’s assistant, and noting Dyab’s failure to self-surrender
was inconsistent with an intent to appeal, the district court found Dyab did not
instruct his counsel to file a notice of appeal. The district court denied Dyab’s § 2255
motion, but granted him a certificate of appealability on the issue.
Entitlement to § 2255 relief based upon counsel’s failure to file a notice of
appeal requires that Dyab show he “made ‘manifest’ [his] desire to appeal by
expressly instructing [his] attorney to appeal.” Nupdal v. United States, 666 F.3d
1074, 1076 (8th Cir. 2012) (quoting Barger v. United States, 204 F.3d 1180, 1182
(8th Cir. 2000)). “A bare assertion by the petitioner that [he] made a request is not
by itself sufficient to support a grant of relief, if evidence that the fact-finder finds to
be more credible indicates the contrary proposition.” Barger, 204 F.3d at 1182. After
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
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a careful review of the record and, particularly, “accord[ing] deference to the district
court’s credibility determinations,” we conclude the district court did not clearly err
in finding Dyab failed to instruct his counsel to file a notice of appeal. Id. at 1181(reviewing factual findings for clear error).
Upon de novo review, see Nupdal, 666 F.3d at 1075, and finding no error, we
affirm.
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