Juan Manuel Bernard Palacios v. United States

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12511 DECEMBER 9, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:09-cv-21212-ASG; 1:06-cr-20081-ASG-2
JUAN MANUEL BERNARD PALACIOS,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 9, 2011)
Before EDMONDSON, WILSON, and BLACK, Circuit Judges.
PER CURIAM:
Juan Manuel Bernard Palacios, a federal prisoner, appeals the district
court’s denial of his pro se 28 U.S.C. § 2255 motion to vacate. Reversible error
has been shown; we vacate and remand for additional proceedings.
Palacios was sentenced to 135 months’ imprisonment after pleading guilty
to conspiracy to launder money and money laundering, in violation of 18 U.S.C. §
1956(a)(1)(A)(l), (a)(2)(A), (h). Palacios filed a section 2255 motion to vacate in
which he raised five claims, including that his lawyer was ineffective for failing to
file a direct appeal. Following an evidentiary hearing on this claim, the magistrate
judge recommended that the district court deny Palacios’s motion to vacate. The
district court adopted the magistrate’s recommendation and denied Palacios’s
motion on the merits. We granted a certificate of appealability on the question of
“[w]hether the district court erred in denying Palacios’s claim that trial counsel
was ineffective for failing to consult with Palacios about filing an appeal.”
“Whether counsel was ineffective is a mixed question of law and fact that
we review de novo.” Thompson v. United States, 504 F.3d 1203, 1206 n.4 (11th
Cir. 2007). We review the district court’s findings of fact for clear error and its
conclusions of law de novo. Id. To make a successful claim of ineffective
assistance of counsel, a defendant must show that (1) his counsel’s performance
was deficient, and (2) the deficient performance prejudiced his defense.
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Strickland v. Washington, 104 S.Ct. 2052, 2064 (1984).
It is well-established that a lawyer who disregards his client’s instructions to
file a notice of appeal acts in a professionally unreasonable manner. Roe v.
Flores-Ortega, 120 S.Ct. 1029, 1035 (2000). Even when a defendant does not
specifically instruct his lawyer to file an appeal, we must determine whether his
lawyer consulted with him about an appeal. Id. “[A]dequate consultation requires
informing a client about his right to appeal, advising the client about the
advantages and disadvantages of taking an appeal, and making a reasonable effort
to determine whether the client wishes to pursue an appeal, regardless of the
merits of such an appeal.” Thompson, 504 F.3d at 1206 (emphasis in original).
Although Palacios asserted that he specifically asked his lawyer, Gustavo
Garcia-Montes, to file an appeal, the district court credited Garcia-Montes’s
testimony that Palacios never asked him to do so. Because nothing evidences that
the court’s credibility finding was clearly erroneous, we will assume that Palacios
never expressly asked Garcia-Montes to file an appeal. See McGriff v. Dep’t of
Corr., 338 F.3d 1231, 1238 (11th Cir. 2003) (“Absent evidence of clear error, we
consider ourselves bound by a district court’s findings of fact and credibility
determinations.”).
Thus, our inquiry turns to whether Garcia-Montes actually consulted with
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Palacios about his appeal. See Flores-Ortega, 120 S.Ct. at 1035. At the
evidentiary hearing, Garcia-Montes testified that -- in response to Palacios’s
dissatisfaction with his sentence and questions about what to do next -- he told
Palacios that nothing could be done because he had waived his right to appeal his
sentence and the district court had sentenced him within the guidelines range.
Garcia-Montes did not, however, attempt to determine whether Palacios wished to
file an appeal or discuss the advantages and disadvantages of filing such an
appeal. We have explained that “[s]imply asserting the view that an appeal would
not be successful does not constitute ‘consultation’ in any meaningful sense.”
Thompson, 504 F.3d at 1207. Based on this record, we conclude that Garcia-
Montes failed to consult adequately with Palacios about his right to appeal and
must determine whether Garcia-Montes had a constitutional duty to do so. Flores-
Ortega, 120 S.Ct. at 1036.
A constitutional duty to consult with a defendant about an appeal arises
“when there is reason to think either (1) that a rational defendant would want to
appeal . . ., or (2) that this particular defendant reasonably demonstrated to counsel
that he was interested in appealing.” Id. At the evidentiary hearing, Garcia-
Montes testified that after the court announced Palacios’s sentence Palacios asked
“what’s next? What can we do now? Something along those lines.” After Garcia-
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Montes told him that nothing could be done, Palacios “was quiet, [and] . . . looked
very crushed.” Because Palacios’s conduct reasonably demonstrated an interest in
appealing, it triggered Garcia-Montes’s duty to consult with him about his appeal.
See Thompson, 504 F.3d at 1208 (concluding that counsel had a “clear duty to
consult” with his client about an appeal when his client expressed that he was
“unhappy” with his sentence as compared to that of his codefendants). Garcia-
Montes’s failure to fulfill this duty constituted deficient performance under
Strickland. See Flores-Ortega, 120 S.Ct. at 1036.
To establish prejudice under Strickland, Palacios “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.” Id. In this case,
Palacios immediately expressed dissatisfaction with his sentence and testified that
he wished to file an appeal. Thus, he demonstrated a reasonable probability that
he would have exercised his right to appeal. See id. (stating that evidence that the
defendant “promptly expressed a desire to appeal will often be highly relevant” in
determining whether he suffered prejudice). Because Palacios established that his
lawyer was ineffective for failing to consult with him, he “is entitled to an out-of-
time appeal, regardless of whether he can identify any arguably meritorious
grounds for appeal that would fit one of the exceptions contained in his appeal
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waiver.” See Gomez-Diaz v. United States, 433 F.3d 788, 793 (11th Cir. 2005).
We vacate and remand with instructions that Palacios be permitted to file a
direct appeal in accordance with the procedure set forth in United States v.
Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000).
VACATED AND REMANDED.
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