Mackese Walker Speight vs USA

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13336 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 23, 2011
________________________ JOHN LEY
CLERK
D.C. Docket Nos. 2:06-cr-00452-RDP-TMP-2,
2:08-cv-08016-RDP -TMP
MACKESE WALKER SPEIGHT,
lllllllllllllllllllll Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
ll lllllllllllllllllllRespondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 23, 2011)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Mackese Speight appeals the district court’s order denying her 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct her sentence. Speight pleaded guilty,
without a plea agreement, to one count of conspiracy to commit carjacking, in
violation of 18 U.S.C. § 371, three counts of carjacking, in violation of 18 U.S.C.
§ 2119, and three counts of using a firearm in connection with a crime of violence,
in violation of 18 U.S.C. § 924(c)(1). For these offenses, the district court
sentenced Speight to 819 months’ imprisonment.1 Speight did not file a direct
appeal. Less than one year later, Speight filed a § 2255 motion, arguing that she
received ineffective assistance of counsel when her trial attorney failed to consult
with her concerning the advisability of appealing either her guilty plea or the
sentence imposed. The district court denied her motion, finding that Speight’s
attorney was not deficient in failing to consult with Speight about an appeal
because, inter alia, no rational defendant in Speight’s position would have wanted
to appeal. Speight now appeals the dismissal of her § 2255 motion.2
We first note that the Speight does not argue that she specifically requested
1
Of this sentence, 684 months was the result of mandatory sentences imposed for the
three § 924(c) offenses
2
We review de novo a district court’s legal conclusions in a § 2255 proceeding. See
Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam). Whether counsel is
ineffective is a mixed question of law and fact that we review de novo. United States v. Bender,
290 F.3d 1279, 1284 (11th Cir. 2002). We will interfere with a credibility determination only if
it is clearly erroneous. United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002).
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that her counsel file an appeal. Nevertheless, Speight’s counsel was still
constitutionally deficient if he failed in his duty to consult with her regarding an
appeal. That constitutional duty is triggered if either (1) a rational defendant in
Speight’s position would want to appeal or (2) Speight reasonably demonstrated
an interest in appealing. See Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). If
Speight’s attorney did perform deficiently, then to succeed in her ineffective
assistance of counsel claim Speight must show that she was prejudiced by
counsel’s failure to file an appeal, i.e., Speight “must demonstrate that there is a
reasonable probability that, but for counsel’s deficient failure to consult with [her]
about an appeal, [s]he would have timely appealed.” Id. at 484.
In the “vast majority of cases,” the Supreme Court expects lower courts to
find “that counsel had a duty to consult with the defendant about an appeal.” Id. at
481; see also Thompson v. United States, 504 F.3d 1203, 1206 (11th Cir. 2007).
Factors that help us determine whether a rational defendant would want to appeal
include whether there are nonfrivolous grounds for appeal, whether the conviction
follows a guilty plea, whether the defendant received the sentence she bargained
for, and whether the plea agreement waived appellate rights. Flores-Ortega, 528
U.S. at 480; see also Otero v. United States, 499 F.3d 1267, 1270 (11th Cir. 2007)
(per curiam).
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The government argues that no rational defendant would have wanted an
appeal because 57 years of Speight’s sentence was the result of mandatory
consecutive sentences for the § 924(c)(1) offenses, and because Speight pleaded
guilty, which ordinarily weighs against a defendant because it indicates that the
defendant was interested in “seek[ing] an end to judicial proceedings.”
Flores-Ortega, 528 U.S. at 480. We disagree, and find that the district court
clearly erred in finding that no rational defendant would want to appeal Speight’s
guilty plea or 819 month sentence. Speight is a mother of two young children, and
she received a sentence of roughly 68 years for her first criminal episode. Unlike
many defendants, Speight entered a blind guilty plea, thereby preserving her
appellate rights. See Otero, 499 F.3d at 1271 (holding that “on account of the plea
agreement’s broad appeal waiver, any appeal taken by Otero would have been
frivolous and would have been an appeal that no rational defendant would have
taken”); Devine v. United States, 520 F.3d 1286, 1288 (11th Cir. 2008) (per
curiam) (finding that there were no nonfrivolous grounds for appeal because the
defendant had pleaded guilty, there was no suggestion the plea was invalid, and
the defendant’s plea contained an appeal waiver).
Further, Speight had issues of arguable merit to appeal. Specifically, the
court may have committed a Rule 11(b) violation by not clearly advising Speight
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that the three mandatory minimum sentences for the § 924(c)(1) offenses would be
consecutive to each other. Speight also could have appealed the reasonableness of
the discretionary eleven year portion of her sentence.
Because a rational defendant in Speight’s position would have sought to
appeal, Speight’s attorney was under a constitutional obligation to consult Speight
about an appeal. See Otero, 499 F.3d at 1270. After an evidentiary hearing, the
magistrate judge found that Speight’s attorney did not consult with Speight about
an appeal, and the district court agreed. These decisions were not clearly
erroneous—Speight’s attorney’s only advice to Speight and her family was that
there was nothing to appeal. See Thompson, 504 F.3d at 1207 (“Simply asserting
the view that an appeal would not be successful does not constitute ‘consultation’
in any meaningful sense.”). Instead, adequate consultation requires that an
attorney inform a client about her right to appeal, advise the client about the
advantages and disadvantages of taking an appeal, and make a reasonable effort to
determine whether the client wishes to pursue an appeal. Id. at 1206.
Accordingly, Speight’s attorney performed deficiently by not consulting with
Speight about an appeal.
Finally, we conclude that Speight was prejudiced as a result of counsel
failing to consult with her regarding an appeal. There was a reasonable
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probability that, but for counsel’s deficient failure to consult, Speight would have
timely appealed. Speight has showed nonfrivolous grounds for appeal, thereby
bolstering her contention that she would have appealed if her attorney had
consulted with her. Flores-Ortega, 528 U.S. at 486 (explaining that “showing
nonfrivolous grounds for appeal may give weight to the contention that the
defendant would have appealed”). Moreover, like the defendant in Thompson,
504 F.3d at 1208, Speight and her family expressed dissatisfaction with what they
perceived as a lengthy sentence. Had counsel consulted adequately with Speight
about an appeal, there is a reasonable probability that Speight would have
appealed.
Speight is entitled to pursue an out-of-time appeal of her conviction and
sentence. Accordingly, we reverse the district court’s denial of Speight’s § 2255
motion.3
REVERSED.
3
Speight’s motion to expand the certificate of appealability is DENIED because it was
untimely. See Tompkins v. Moore, 193 F.3d 1327, 1332 (11th Cir. 1999).
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