United States v. v. Ledesma-Cardenas ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1760
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United States of America, *
*
Plaintiff – Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Virginia Ledesma-Cardenas, *
* [UNPUBLISHED]
Defendant – Appellant. *
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Submitted: June 11, 2007
Filed: June 20, 2007
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Before BYE, RILEY, and BENTON, Circuit Judges.
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PER CURIAM.
Virginia Ledesma-Cardenas appeals the dismissal of her motion to vacate, set
aside, or correct her sentence, claiming her trial counsel failed to file a notice
appealing that sentence. See 28 U.S.C. § 2255. At an evidentiary hearing, counsel
stated (and the district court1 found) that initially Ledesma wanted to appeal, but after
they discussed her case, he believed she no longer wished to appeal. Although
Ledesma testified that she never discussed the possibility of appeal with her counsel,
she now relies on his testimony to argue that she told him she wanted to appeal. The
1
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
district court found counsel credible, concluding that Ledesma’s desire to appeal was
not made manifest to him, and therefore counsel did not fail in his duty to file an
appeal.
This court defers to a district court’s credibility determination. Barger v. United
States, 204 F.3d 1180, 1182 (8th Cir. 2000) (affirming district court decision crediting
attorney’s testimony that his client did not request an appeal); Green v. United States,
323 F.3d 1100, 1103 (8th Cir. 2003) (same). Ledesma’s assertion that she made a
request is not “by itself sufficient to support a grant of relief [under § 2255], if
evidence that the fact-finder finds to be more credible indicates the contrary position.”
Id. Having carefully reviewed the record, this court finds that the district court’s
findings of fact are not clearly erroneous, and no error of law appears. See United
States v. Davis, 406 F.3d 505, 508 (8th Cir. 2005); Green, 323 F.3d at 1103; Barger,
204 F.3d at 1182.
As an extended opinion would have no precedential value, the judgment of the
district court is affirmed. See 8th Cir. R. 47B.
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