“[C]onflicting testimony was presented about the filing of an appeal. The district court did not credit Casey’s deposition testimony, which the court stated indicated a bias against Popuch on Casey’s part due to the check forgery. Also, given Tezak’s vocal and commanding participation in his defense presentation, the court found it improbable that even though the record contained numerous correspondence from Tezak to his attorneys and numerous memoranda concerning Tezak’s directives and complaints to all of his attorneys, there had been no complaint noted from Tezak, vocal or written, that his attorneys had failed to file an appeal until the filing of the sec. 2255 petition nearly two-and-a-half years later. The court also noted that Tezak never, at any time in his appearances before and during the Rule 35 motion, made a complaint about the failure of his attorneys to file a notice of appeal. The court discounted the letter from Tezak dated August 4, 1994 to Popuch, a copy of which was produced by Tezak, but never found in Popuch’s files, particularly in light of the fact that even after Tezak allegedly sent this letter to Popuch, he continued to retain and be represented by Popuch.”
Appeal from the United States District Court for the Northern District of Illinois, Andersen, J., Harlington Wood, J.