United States Court of Appeals,

Fifth Circuit.

No. 91-1873.

Darrell Windell CHILDS, Petitioner-Appellant,

v.

James A. COLLINS, Director Texas Department of Criminal Justice, Institutional Division,

Respondent-Appellee.

July 13, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, DAVIS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Darrell Windell Childs appeals the district court's denial of his petition for habeas corpus relief

under 28 U.S.C. § 2254 . Fo r t he reasons set forth below, we affirm the district court's denial of

Childs's petition.

I.

On August 18, 1988, Childs was convicted in a Texas court on charges of aggravated robbery

and was sentenced to 45 years impriso nment . Childs did not timely file a notice of appeal of that

conviction.

Some three months after his conviction, Childs filed a petition for a writ of habeas corpus in

the state trial court, alleging ineffective assistance of counsel that resulted in a denial of his right to

appeal. Specifically, Childs asserted that he was not properly informed of his right to appeal and that

his appointed counsel failed to give notice of appeal and withdrew from the case without notice to

Childs or the trial court. Moreover, Childs alleged that his appointed trial counsel, King T. Solomon,

had promised to escort Childs to court on August 24, 1988, for the purpose of signing appeal papers

if he wished to appeal, but did not keep his alleged promise.

The state trial court requested an affidavit from Childs's trial counsel. After considering this

affidavit, the court denied Childs's petition and found: (1) Childs was informed of his right to appeal

by the trial court and his trial counsel; (2) Childs failed to timely notify anyone connected with thecourt of his desire to perfect an appeal; and (3) Childs's failure to make known his desire to appeal

his conviction resulted in a waiver of his right to appeal.

After the Texas Court of Criminal A ppeals summarily denied his request for habeas relief,

Childs filed the instant habeas suit in the Northern District of Texas pursuant to 28 U.S.C. § 2254.

The case was referred to Magistrate Judge William Sanderson, who recommended that the petition

be denie d and dismissed. The district court adopted the magistrate judge's recommendation and

denied relief. This appeal followed.

II.

Childs's ineffective assistance of counsel claims are governed by Penson v. Ohio, 488 U.S.

75, 88 , 109 S.Ct. 346, 354, 102 L.Ed.2d 300 (1988), in which the Supreme Court held that a

petitioner need not prove prejudice under Strickland when the actions complained of resulted in the

actual or constructive denial of the assistance of counsel altogether. Thus, Childs need only satisfy

Strickland 's requirement of showing that counsel's performance was so seriously deficient that he was

no t functioning as counsel. S ee United States v. Gipson, 985 F.2d 212, 215 (5th Cir.1993) (" If a

petitioner can prove that the ineffective assistance of counsel denied him the right to appeal, then he

need not further establish—as a prerequisite to habeas relief—that he had some chance of success on

appeal."); C

hildress v. Lynaugh, 842 F.2d 768, 772 (5th Cir.1988) ("Prejudice resulting from the

denial of a defendant's right to appeal is presumed because a criminal conviction can be attacked on

numerous grounds and thus, given the likelihood of prejudice, a case-by-case inquiry is not worth the

costs.").

It should also be noted that in a federal habeas proceeding, factual findings of a state court

must be presumed correct unless they are not fairly supported in the record. 28 U.S.C. § 2254(d)(8).

Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983).

Childs asserted in the district court that he had not been informed of his right to appeal, but

he now acknowledges that the st ate court's factual finding with support in Solomon's affidavit

precl udes o ur consideration of that issue. Instead, Childs argues that his appointed trial counsel's

failure to notice and perfect an appeal of his aggravated robbery conviction amounted to ineffective1 In arguing that Solomon had the duty to continue to consult with Childs or the duty to

represent Childs on appeal, Childs is trying to avoid the court's finding that Solomon properly

advised him of his rights. Once Childs was informed of his right to appeal, then it was up to

Childs to assert the right to the court or to Solomon. Solomon's alleged breach of professional

ethics did not prevent Childs from voicing his intent to appeal. assistance of counsel.

Criminal defense counsel need not be omniscient, and they are not always omnipotent with

respect to the protecti on of a client's rights. The duty to perfect an appeal on behalf of a convicted

client does not arise on conviction, but when the client makes known to counsel his desire to appeal

the conviction. 1 What the Constitution does require is that the defendant be fully informed of his right

to appeal. This would require that the client be advised not only of his right to appeal, but also of the

procedure and time limit s involved and of his right to appointed counsel on appeal. S ee Lumpkin v.

Smith, 439 F.2d 1084, 1085 (5th Cir.1971). The state court found that Childs had been advised of

his appellate rights, and there is nothing in the record to overcome the presumption of correctness

that rests on the state court's finding.

The State contends that Childs was not denied effect ive assistance of counsel because he

waived his right to appeal. The state habeas court expressly found a waiver o f Childs's appellate

rights. Ordinarily, courts require a voluntary and intelligent waiver of a known constitutional right.

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The right to

appeal, however, is not a negative right to be used as a shield against government intrusion. Instead,

it is a positive right that must be affirmatively exercised. See Norris v. Wainw right, 588 F.2d 130,

137 (5th Cir.) ("A defendant properly informed of his appellant rights may not "let the m atter rest,'

and then claim that he did not waive his right to appeal." (citation omitted)), c ert. denied, 444 U.S.

846, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979).

Consequently, waiver of the right to appeal requires only that there be a knowledge of the

right to appeal and a failure to make known the desire to exer cise that right. G ipson, 985 F.2d at

216; M eeks v. Cabana, 845 F.2d 1319, 1322 (5th Cir.1988); N orris, 588 F.2d at 135-37. The state

court's finding of waiver is a factual finding, subject to a presumption of correctness under 28 U.S.C.2 Although there was no live evidentiary hearing in the state habeas corpus proceeding, Childs

does not challenge the adequacy of that proceeding for the purposes of section 2254(d). § 2254(d). G ipson, 985 F.2d at 216; M eeks, 845 F.2d at 1323. 2 Unlike G ipson, where the petitioner

had clearly informed his attorney of his desire to appeal, Childs did not t imely inform the court or his

attorney of his desire to prosecute an appeal.

Solomon's failure to escort Childs to court does not excuse Childs's failure to make his desire

to appeal known to Solom o n. Further, under the circumstances, Solomon's agreement to escort

Childs to court, by itself, is insufficient to overcome the state cou rt finding that Childs never

expressed his desire to appeal his conviction. The record demonstrates that Childs told Solomon that

he had not decided whether he would appeal his conviction, and Solomon's promise to escort Childs

to court the following week was conditioned implicit ly on Childs's decision to appeal his conviction.

When Solomon failed to show up the following week, Childs had sufficient time to notify Solomon

or the court that he wished to appeal his conviction, but he never did.

We are bound to accept the state court's findings that Childs was informed of his appellate

rights and failed to make known his desire to exercise those rights. These factual findings adequately

support the state court's further fi nding that Childs waived his right to appeal. Therefore, having

waived his right to appeal, Childs was not denied effective assistance of counsel on appeal.

CONCLUSION

For the assigned reasons, the district court's denial of habeas corpus relief is AFFIRMED.