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United States v. Gregorio v. Arvizu
Citations: 270 F.3d 605; 2001 U.S. App. LEXIS 23878; 2001 WL 1355589Docket: 00-3300
Court: Court of Appeals for the Eighth Circuit; November 6, 2001; Federal Appellate Court
Gregorio Arvizu pled guilty to possession with intent to distribute cocaine, violating 21 U.S.C. § 841(a)(1), and received a 52-month prison sentence. Following his sentencing, Arvizu filed a notice of appeal 57 days later, which was dismissed as untimely. He subsequently sought to vacate his sentence under 28 U.S.C. § 2255, claiming ineffective assistance of counsel for failing to file a timely appeal. The district court denied his motion, leading to a certificate of appealability on the effectiveness of his trial counsel. Arvizu asserted that his attorney, Steven J. Lefler, indicated there were no credible issues to appeal and inferred that Lefler refused to file an appeal. However, Lefler's affidavit stated that he discussed the appeal with Arvizu and prepared the necessary documents, offering to file them if Arvizu desired. Lefler also noted that he did not hear back from Arvizu after providing the paperwork. Additionally, during sentencing, the court informed Arvizu of the ten-day deadline for filing an appeal, to which Arvizu confirmed his understanding. The district court found no merit in Arvizu's claim, concluding that Lefler had consulted with him and that there was no evidence Arvizu instructed Lefler to file an appeal. The court determined that since Lefler had consulted with Arvizu and received no express instructions to appeal, there was no ineffective assistance. The appeal was affirmed, with the court affirming the district court's judgment and denying the need for an evidentiary hearing.