IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Pablo Palacios-Rios (Palacios), federal prisoner #

49304-019, appeals the denial of his 28 U.S.C. § 2255 motion in which he claimed

that counsel was ineffective for failing to appeal. We granted a certificate of

appealability (COA) on whether Palacios asked his lawyer to file an appeal. 

United States v. Rios, No 11-40913 (5th Cir. April 2, 2012) (unpublished order). 

United States Court of Appeals

Fifth Circuit

F I L E D

February 20, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 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 5TH CIR.

R. 47.5.4.

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

A lawyer performs deficiently if he “disregards specific instructions from

the defendant to file a notice of appeal.” Roe v. Flores-Ortega, 528 U.S. 470, 477

(2000). A lawyer also performs deficiently if he fails to discuss the advantages

and disadvantages of an appeal and fails to ascertain the defendant’s wishes

about an appeal whenever “there is reason to think either (1) that a rational

defendant would want to appeal . . . or (2) that this particular defendant

reasonably demonstrated to counsel that he was interested in appealing.” Id. at

478-80. To show prejudice, the defendant need only show a reasonable

probability that, but for counsel’s deficient performance, he would have

appealed. Id. at 484-85. 

During a hearing in which the district court participated by video

conferencing, Palacios and his lawyer testified. The district court made an

adverse credibility finding in rejecting Palacios’s assertion that 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 appeal, 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 after a § 2255 evidentiary hearing” that are reviewed for clear error on

appeal. See United States v. Molina-Uribe, 429 F.3d 514, 518 (5th Cir. 2005). 

Particular deference is due when the district court’s findings are based on its

own assessment of the credibility of witnesses. 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 entirety,” we will not reverse it

absent a “definite and firm conviction that a mistake has been committed.” 

United States v. Harris, 434 F.3d 767, 773 (5th Cir. 2005) (internal quotation

marks and citations omitted). Palacios has 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