Louis Weeks v. United States

Case: 11-14781 Date Filed: 07/24/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-14781
Non-Argument Calendar
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D.C. Docket Nos. 0:10-cv-62369-JIC ; 0:10-cr-60050-JIC-1
LOUIS WEEKS,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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Before DUBINA, Chief Judge, FAY, and EDMONDSON, Circuit Judges.
PER CURIAM:
Appellant Louis Weeks appeals the denial of his motion to vacate his
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federal sentence, pursuant to 28 U.S.C. § 2255. We granted a certificate of
appealability on the following issue: “Whether the district court erred in
determining that counsel’s failure to file a notice of appeal was not ineffective
assistance? See Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed.
2d 985 (2000); Thompson v. United States, 504 F.3d 1203 (11th Cir. 2007).”
Weeks argues on appeal that his counsel provided ineffective assistance because
he failed to file a notice of appeal after Weeks instructed him to do so, and that
Weeks would have pursued an appeal had his counsel adequately consulted with
him.
In a § 2255 proceeding, “we review a district court’s legal conclusions de
novo and factual findings for clear error.” Devine v. United States, 520 F.3d 1286,
1287 (11th Cir. 2008). Whether counsel was ineffective is a mixed question of law
and fact that we review de novo. Id. “We allot substantial deference to the
factfinder in reaching credibility determinations with respect to witness
testimony.” Id. (internal quotation marks and ellipsis omitted).
To prevail on an ineffective assistance of counsel claim, a party must
establish that (1) his counsel’s performance was deficient and (2) that he suffered
prejudice as a result of that deficient performance. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). The Strickland test
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also applies to claims for ineffective assistance based on the failure to file a notice
of appeal. Flores-Ortega, 528 U.S. at 476-77, 120 S. Ct. at 1034. Because the
moving party bears the burden of establishing a right to relief in habeas
proceedings, when “counsel cannot recall specifics about his actions due to the
passage of time and faded memory, we presume counsel performed reasonably and
exercised reasonable professional judgment.” Blankenship v. Hall, 542 F.3d 1253,
1274 (11th Cir. 2008) (28 U.S.C. § 2254 context); cert. denied, 131 S. Ct. 1041(2011).
With respect to the performance prong, an attorney who fails to follow his
client’s specific instructions to file a notice of appeal acts in a professionally
unreasonable manner. Flores-Ortega, 528 U.S. at 477, 120 S. Ct. at 1035. By the
same logic, a client cannot later claim that his attorney was deficient in failing to
file an appeal when the client explicitly instructed his attorney not to file an
appeal. Id. In the absence of specific instructions, an attorney has a constitutional
duty to consult with his client about an appeal when (1) a rational defendant would
want to appeal, or (2) the defendant reasonably demonstrated to counsel an interest
in seeking an appeal. Id. at 480, 120 S. Ct. at 1036. Adequate consultation
requires the following: (1) “informing a client about his right to appeal”;
(2) “advising the client about the advantages and disadvantages of taking an
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appeal”; and (3) “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. Any waiver of the right to appeal must be knowing
and voluntary. Id. at 1206-07.
With respect to the prejudice prong, the movant must establish that, had he
received reasonable advice from his attorney about an appeal, he would have
instructed his attorney to file an appeal. Flores-Ortega, 528 U.S. at 486, 120 S.
Ct. at 1039. While “showing nonfrivolous grounds for appeal may give weight to
the contention that the defendant would have appealed,” the movant need only
show that, but for his attorney’s deficient performance, he would have appealed.
Id. at 486, 120 S. Ct. at 1039-40.
The district court found that based on credibility determinations, counsel
discussed with Weeks options to reduce his sentence; that counsel told Weeks he
could not appeal and cooperate with the government at the same time; that counsel
told Weeks his best option was to pursue cooperation; and that Weeks thereafter
decided to pursue cooperation with the government rather than an appeal. The
district court’s factual findings were not clearly erroneous. Thus, we conclude
from the record that counsel’s performance was not deficient because he consulted
with Weeks about whether to take an appeal and made a reasonable effort to
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determine and carry out Weeks’s wishes. Thompson, 504 F.3d at 1206.
Accordingly, we affirm the district court’s order denying Weeks’s § 2255 motion.
AFFIRMED.
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