### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-40913 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. PABLO PALACIOS-RIOS, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:11-CV-91 USDC No. 2:10-CR-532-1

Before WIENER, ELROD, and GRAVES, Circuit Judges. PER CURIAM: * Defendant-Appellant P a blo Palacios-Rios (Palacios), f ederal p risoner # 49304-019, appeals the denial of his 28 U.S.C. § 2255 motion in which he claimed that counsel was i n e f f e c t i ve for failing to a ppeal. W e granted a certificate of appealability (COA) o n w h e ther Palacios asked his lawyer to file an appeal. United States v. R i os , No 11-40913 (5th Cir. April 2, 2012) (unpublished order). U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D February20, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-40913 Document: 00512149511 Page: 1 Date Filed: 02/20/2013No. 11-40913

A lawyer performs deficiently if he “disregards specific instructions from the defendant to file a n otice of appeal.” Roe v. Flores-Ortega , 528 U.S. 470, 477 (2000). A lawyer also p erforms deficiently i f he f ails to discuss the advantages

a n d disadvantages of a n appeal and fails to ascertain the defendant’s w i s h e s about an ap p e a l w henever “there is r e ason to think e ither (1) that a rational defendant would want to a ppeal

. . . or (2) that this part i c u l a r d e f e ndant reasonably demonstrated t o counsel that he was interested in a ppealing.” Id. at 478-80. To show prejudice, the de f e n d ant need only show a reasonable probability that, but for counsel’s deficient pe r f o r m a n ce, he would have appealed. Id . at 484-85. During a hearing in which the district c ourt participated b y vid e o conferencing, Palacios and h i s l a w yer testified. The district court made an
a dv e r s e c r e dib ility finding in rejecting Palacios’s assertion th at he requested and paid for an appeal. The court credited the lawyer’s testimony that he was never paid to file an appeal, that he counseled Palacios about an a ppeal, and that he would not have overlooked or ignored a request for an appeal. The district court’s explicit and discrete factual findings that Ellison consulted Palacios about appealing and that Palacios did not request an appeal

are the sort of “subsidiary findings of basic, historical fact made by the district court a f t e r a § 2255 evidentiary hearing” that are reviewed for clear error on appeal. See United States v. Molina-Uribe , 4 2 9 F

. 3 d 5 14, 518 (5th Cir. 2005). Particular defer e n c e is due when the district court’s findings are based on its

own assessment of the credibility o f w i t n e s s es. Johnson v. Collins , 964 F.2d 1527, 1532 ( 5th Cir. 1992). As “the district court’s account of the evidence is plausible in light of the record viewed in its entir e ty,” we will not reverse it absent a “de f

i nite and firm conviction that a m istake has been committed.” United States v. Harris , 434 F.3d 767, 773 (5th Cir. 2005) (internal quotation

mar k s a n d c i tations omitted). Palacios h as not shown that the district court committed clear error. The judgment is therefore AFFIRMED.
2 Case: 11-40913 Document: 00512149511 Page: 2 Date Filed: 02/20/2013