United States v. Harold Blondeau , 531 F. App'x 340 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6337
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAROLD EARL BLONDEAU,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (5:09-cr-00117-H-1; 5:11-cv-00124-H)
Submitted: June 5, 2013 Decided: June 28, 2013
Before KING and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Harold Earl Blondeau, Appellant Pro Se. Seth Morgan Wood,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold Earl Blondeau, a federal prisoner, filed a 28
U.S.C.A. § 2255 (West Supp. 2012) motion contending, in relevant
part, that his trial counsel were unconstitutionally ineffective
in failing to consult with him regarding his desire to file an
appeal. After we granted a certificate of appealability on this
claim and remanded his case to the district court for an
evidentiary hearing, United States v. Blondeau, 480 F. App’x 241
(4th Cir. 2012) (No. 11-7576), the district court found that
counsel had consulted with Blondeau as to his appellate
preferences and once again denied Blondeau’s § 2255 motion.
Blondeau appeals for the second time.
We review the district court’s conclusions of law de
novo and its findings of fact for clear error. United States v.
Nicholson, 611 F.3d 191, 205 (4th Cir. 2010). The term
“consult” as used in this context has “a specific meaning —
advising the defendant about the advantages and disadvantages of
taking an appeal, and making a reasonable effort to discover the
defendant’s wishes.” Roe v. Flores-Ortega, 528 U.S. 470, 478
(2000). Our review of the record convinces us that counsel gave
Blondeau “reasonable advice” when informing him that, in their
opinion, he did not have any meritorious issues to appeal. Id.
at 486; United States v. Poindexter, 492 F.3d 263, 268-69 (4th
2
Cir. 2007). See also Bell v. Jarvis, 236 F.3d 149, 164 (4th
Cir. 2000) (en banc) (explaining the deference owed to counsel’s
determination of which issues warrant appeal).
With respect to whether counsel made “a reasonable
effort to discover [Blondeau’s] wishes,” Flores-Ortega, 528 U.S.
at 478, we note that the testimony elucidated at the evidentiary
hearing provides a degree of support for Blondeau’s assertions.
See Bostick v. Stevenson, 589 F.3d 160, 166 (4th Cir. 2009)
(“‘Simply asserting the view that an appeal would not be
successful does not constitute “consultation” in any meaningful
sense.’” (quoting Thompson v. United States, 504 F.3d 1203, 1207
(11th Cir. 2007)); In re Sealed Case, 527 F.3d 174, 175 (D.C.
Cir. 2008) (even where defense counsel has discussed the
possible merits of an appeal with his client, he fails to
adequately consult his client if he makes “no effort to discover
his client’s wishes regarding an appeal”); Lewis v. Johnson, 359
F.3d 646, 660-61 (3d Cir. 2004). But see United States v.
Doyle, 631 F.3d 815, 818 (6th Cir. 2011) (finding adequate
consultation where counsel explained defendant’s appellate
rights throughout the course of his representation); Keys v.
United States, 545 F.3d 644, 647 (8th Cir. 2008) (same);
Bednarski v. United States, 481 F.3d 530, 534 (7th Cir. 2007)
(same).
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But, even assuming that Blondeau’s counsel failed to
adequately ascertain precisely how Blondeau wished to act upon
their advice not to appeal his sentence, Blondeau has failed to
demonstrate that he suffered prejudice from their conduct, given
that he admitted at the evidentiary hearing that he would not
have filed an appeal during the appeal period, on the basis of
counsel’s reasonable advice. See Poindexter, 492 F.3d at 268-69
(in the context of an attorney’s failure to consult, “prejudice
will be presumed if the defendant can show that, had he received
reasonable advice from his attorney, he would have instructed
his attorney to file a timely notice of appeal.”).
In other words, Blondeau essentially admits that, even
if counsel had asked him during the appeal period whether he
wished to file an appeal, he would have said no, on the basis of
the advice that counsel had given him. As we have explained,
counsel’s advice was not unreasonable. Thus, because Blondeau
has failed to demonstrate that he was prejudiced by his
counsel’s failure to adequately consult him as to his appellate
preferences, his ineffective assistance claim must fail. See
id.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before this court and argument would not aid the decisional
process.
AFFIRMED
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