Anson Holley, Jr. v. Terry Terrell , 463 F. App'x 270 ( 2012 )

Case: 11-30206 Document: 00511766971 Page: 1 Date Filed: 02/24/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 24, 2012
No. 11-30206
Summary Calendar Lyle W. Cayce
Clerk
ANSON HOLLEY, JR.,
Plaintiff-Appellant
v.
TERRY TERRELL,
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:10-CV-1787
Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Anson Holley Jr., Louisiana inmate # 530319, appeals
the dismissal of his 28 U.S.C. § 2254 petition, in which he challenged his
conviction for molestation of a juvenile. We granted a certificate of appealability
(COA) on the issue whether Holley’s waiver of his right to appeal comported with
due process.
Holley asserts that, although the right to appeal from a conviction may not
be guaranteed by the federal constitution, when an appeal is available as a
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30206 Document: 00511766971 Page: 2 Date Filed: 02/24/2012
No. 11-30206
matter of right, the decision to forgo it must be made by the defendant, not his
lawyer. He contends that the personal right to appeal may be raised separate
and apart from a claim of ineffective assistance of counsel.
Holley was present at the sentencing hearing when his counsel announced
that Holley would not be appealing, and he stood mute following counsel’s
statement. In light of these two facts, the state habeas court could have
reasonably concluded that Holley's failure to make known his desire to appeal
constituted a knowing waiver or forfeiture of his right to do so. See Harrington
v. Richter, 131 S. Ct. 770, 784, 786-87 (2011); Childs v. Collins, 995 F.2d 67, 69
(5th Cir. 2003). Thus, fairminded jurists could agree that the state habeas
court’s finding that Holley was not entitled to an out of time appeal is consistent
with due process. See Richter, 131 S. Ct. at 786-87; Evitts v. Lucey, 469 U.S. at
393, 405 (1985).
As Holley’s challenge to the child victim’s testimony is outside the scope
of the COA, we lack jurisdiction to consider it. See Simmons v. Epps, 654 F.3d
526, 535 (5th Cir. 2011), petition for cert. filed (Dec. 27, 2011) (No. 11-8085).
AFFIRMED.
2