Dennis Chavez-Garcia v. United States ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 13, 2007
No. 06-15157
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos.
05-21798-CV-ASG & 04-20133 CR-ASG
DENNIS CHAVEZ-GARCIA,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 13, 2007)
Before BIRCH, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Dennis Chavez-Garcia, a federal prisoner proceeding on appeal with
appointed counsel, appeals the denial of his motion to vacate filed pursuant to 28
U.S.C. § 2255. The district court granted a certificate of appealability on the
following issue: whether “his trial counsel was constitutionally ineffective for not
following through with the appeal as requested.” According to Chavez, his
counsel improperly dismissed his direct appeal. Chavez contends that counsel had
a duty to consult with him about the merits of the appeal and to inquire as to his
wishes regarding the appeal. Chavez claims that at no time did he request that his
appeal be dismissed and that the filing of the voluntary dismissal was without his
approval.
A district court’s legal conclusions in a 28 U.S.C. § 2255 proceeding are
reviewed de novo and its factual findings are reviewed for clear error. Lynn v.
United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam). Whether a
defendant ultimately has received ineffective assistance of counsel is a mixed
question of fact and law reviewed de novo. Mincey v. Head, 206 F.3d 1106, 1142
(11th Cir. 2000). “Where there is directly conflicting testimony, the credibility
determination should be left to the district judge.” Greene v. United States, 880
F.2d 1299, 1306 (11th Cir. 1989). “[W]here there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.”
2
Amadeo v. Zant, 486 U.S. 214, 226, 108 S. Ct. 1771, 1778, 100 L. Ed. 2d 249(1988) (internal quotation marks omitted). See also Otero v. United States, 499
F.3d 1267, 1271 (11th Cir. 2007) (per curiam) (noting that “the district court
discredited [the movant’s] testimony . . . and we are bound to respect the court’s
factual finding”).
The legal standard governing ineffective-assistance-of-counsel claims is
derived from the benchmark case of Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In Strickland, the Supreme Court
established a two-prong test for adjudicating ineffective-assistance-of-counsel
claims. First, a movant must show that counsel’s performance was deficient. Id.
at 687, 104 S. Ct. at 2064. Second, a movant must show that the deficient
performance prejudiced the defense. Id.In Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985(2000), the Supreme Court applied the test set forth in Strickland and reiterated the
long-established rule that a lawyer who disregards specific instructions from the
defendant to file a notice of appeal acts in a professionally unreasonable manner.
Id. at 477, 120 S. Ct. 1035. The Supreme Court further held that, even when a
defendant has not specifically instructed his counsel to file an appeal, counsel’s
performance may still be deficient if counsel had a duty to consult with the
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defendant about an appeal, and did not do so. Id. at 478, 120 S. Ct. at 1035.
This duty to consult arises when either: (1) any rational defendant would
want to appeal; or (2) the defendant reasonably demonstrated an interest in
appealing. Gomez-Diaz v. United States, 433 F.3d 788, 792 (11th Cir. 2005).
“[T]o show prejudice in these circumstances, a defendant must demonstrate that
there is a reasonable probability that, but for counsel’s deficient failure to consult
with him about an appeal, he would have timely appealed.” Flores-Ortega, 528
U.S. at 484, 120 S. Ct. at 1038. In Flores-Ortega the Supreme Court defined the
term “consult” to mean
advising the defendant about the advantages and
disadvantages of taking an appeal, and making a
reasonable effort to discover the defendant’s wishes. If
counsel has consulted with the defendant, the question of
deficient performance is easily answered: Counsel
performs in a professionally unreasonable manner only
by failing to follow the defendant’s express instructions
with respect to an appeal.
Id. at 478, 120 S. Ct. at 1035.
In Thompson v. United States, No. 05-16970, 2007 WL 3033152 (11th Cir.
Oct. 18, 2007), we addressed the issue of adequacy of consultation. There, the
consultation was inadequate because counsel “simply assert[ed] the view that an
appeal would not be successful,” failed to provide information to the defendant to
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allow an intelligent and knowing decision, and made no “reasonable effort . . . to
discover Thompson’s informed wishes regarding an appeal.” Id. at *2.
In this case, a magistrate judge heard live testimony during two separate
evidentiary hearings. During the first hearing, counsel testified that after the
imposition of Chavez’s sentence, counsel explained the Almendarez-Torres v.
United States1 decision to Chavez and that an appeal, if pursued, “would not be a
good appeal.”2 Counsel nonetheless filed a notice of appeal for the sake of
preserving that right and conducted further research. Counsel testified that he sent
Chavez a letter that advised Chavez of his constitutional right to appeal, explained
the Almendarez-Torres decision, and recommended that there were no non-
frivolous grounds for appeal.3 Counsel also testified that when he did not receive
a response from Chavez, he sent a Spanish-speaking investigator with the Office
of the Federal Public Defender to visit Chavez to determine whether Chavez
wanted to proceed with the appeal. The investigator testified that he met with
Chavez, that Chavez advised that he did not want to proceed with the appeal, but
instead wanted to reopen his state case, and that Chavez signed the motion to
1
523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
2
Doc. 24 at 38, 35, 39, 44.
3
Doc. 35 at 16.
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dismiss. The investigator memorialized the conversation in an email to counsel.
Chavez testified that he had received a letter from counsel, had the letter
translated, and understood the letter to be recommending dismissal. Chavez
maintained, however, that he disagreed with counsel’s opinion and, as a result,
attempted to call counsel at his office three to four times a day, but Smith did not
return the calls.
During the second hearing, Chavez testified to an entirely different set of
facts. Chavez claimed that he received a letter from counsel, but that he did not
have it translated, did not understand it, and believed it to be a recommendation to
proceed with the appeal. While Chavez recalled the investigator’s visit, he
believed the paper he signed authorized the appeal to proceed, instead of a
dismissal.
The magistrate considered the copy of the letter produced by counsel, the
email memorializing the conversation between the investigator and Chavez,
Chavez’s signature on the motion for dismissal, and the testimony of the
witnesses. The magistrate found the testimony by counsel and the investigator to
be credible and that Chavez’s testimony was equivocal and contradictory. In his
report and recommendation (“R&R”), the magistrate concluded that counsel had
consulted with Chavez and the decision to dismiss the appeal was made by Chavez
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knowingly and voluntarily. As such, Chavez failed to establish that counsel’s
performance was deficient or caused prejudice. Upon de novo review, the district
court adopted and affirmed the R&R.
Here, where we are confronted with conflicting testimony between the
parties, we leave the credibility determination to the district court. Greene, 880
F.2d at 1306. The facts present counsel as filing a timely notice of appeal,
consulting with Chavez about his appeal, including the issues on appeal, the merits
of the appeal, and the status of the controlling law. Upon consideration of this
information, Chavez formulated a new plan to re-open his state case, decided to
dismiss the appeal, and signed the motion to dismiss. On this record, we must
agree that Chavez failed to meet his burden of showing deficient performance and
prejudice. See Flores-Ortega, 528 U.S. at 478-81, 120 S. Ct. at 1035-37.
Accordingly, we affirm the denial of Chavez’s § 2255 petition.
AFFIRMED.
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