[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13756 ELEVENTH CIRCUIT
SEPTEMBER 7, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket Nos. 08-00541-CV-OC-10GRJ,
07-00026-CR-OC-10GRJ
DONALD EUGENE WILSON, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 7, 2010)
Before EDMONDSON, BLACK and MARTIN, Circuit Judges.
PER CURIAM:
Donald Eugene Wilson, Jr., a federal prisoner proceeding pro se, appeals the
denial of his 28 U.S.C. § 2255 motion to vacate his sentence. Reversible error has
been shown; we vacate and remand for additional proceedings.
Wilson alleged that he received ineffective assistance of counsel because his
lawyer did not file an appeal even though Wilson wanted him to. The district court
concluded that Wilson showed an insufficient desire to appeal because Wilson
failed to state in his sworn affidavit a time, place, or manner in which he gave
timely instructions to his lawyer to file an appeal.* On appeal, Wilson maintains
that he complied with the court’s directive to show that he asked his lawyer to
appeal.
In a section 2255 proceeding, we review legal issues de novo and fact
findings for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.
2004). Whether counsel is ineffective is a mixed question of law and fact that we
review de novo. Gomez-Diaz v. United States, 433 F.3d 788, 790 (11th Cir. 2005).
*
Wilson raised many other claims in his section 2255 motion; but the district court
determined that these claims had no merit. To the extent Wilson raises appellate arguments
beyond whether he sufficiently stated that he asked his lawyer to appeal, we decline to address
them. Our review of a district court’s denial of a section 2255 motion is limited to the issues
specified in the certificate of appealability. Murray v. United States, 145 F.3d 1249, 1250-51
(11th Cir. 1998).
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In addition, we liberally construe pro se pleadings. See Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998).
To prevail on a claim of ineffective assistance of counsel, defendant must
demonstrate that (1) his counsel’s performance was deficient, and (2) he suffered
prejudice as a result of that deficient performance. Strickland v. Washington, 104
S.Ct. 2052, 2064 (1984). A lawyer acts in a professionally unreasonable manner
when he fails to file an appeal on behalf of a client who specifically requests it.
Gomez-Diaz, 433 F.3d at 790 (citing Roe v. Flores-Ortega, 120 S.Ct. 1029, 1035
(2000)). Even if a client did not specifically request that his lawyer file an appeal,
a court must inquire into whether the lawyer consulted with the client about “the
advantages and disadvantages of appealing and made a reasonable effort to
determine the client’s wishes.” Id. at 792; see also Thompson v. United States, 504
F.3d 1203, 1206 (11th Cir. 2007) (“counsel generally has a duty to consult with the
defendant about an appeal”). An affirmative duty to consult arises when a
particular client reasonably demonstrated an interest in appealing. Gomez-Diaz,
433 F.3d at 792.
Prejudice is presumed where counsel fails to file an appeal that the defendant
wanted filed. Id. The movant need only show that, but for the lawyer’s deficient
performance, he would have appealed. Id.
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In a supporting affidavit to his section 2255 motion, Wilson stated that, after
trying many times to reach his lawyer, he finally contacted him about 10 days after
the district court imposed sentence. Wilson stated his concerns about his sentence
and expressed his “desire to file an appeal to [his] sentence and conviction.” But
his lawyer informed him that an appeal would not be meritorious. Wilson admitted
that, on this initial contact, he “did not affirmatively tell [his lawyer] to file the
appeal.” After further considering his sentence, Wilson again contacted his lawyer
a few days later -- before the time for filing an appeal had expired -- and expressed
his desire to file an appeal. His lawyer told Wilson that no grounds for appeal
existed and that he would not file one. Wilson decided to file an appeal himself
but, while in transit from county to state prison, the time for filing an appeal
expired.
We conclude that Wilson’s acts -- even if not demonstrating that he
instructed specifically his lawyer to file an appeal after his lawyer first
recommended against it -- did trigger his lawyer’s duty to consult with Wilson
about the advantages and disadvantages of filing an appeal. Wilson stated that he
expressly communicated to his lawyer that he wished to appeal; thus, Wilson’s
lawyer had an affirmative duty to consult with Wilson about appealing and try to
determine his wishes. And from Wilson’s statements, it is unclear whether his
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lawyer engaged in proper consultation in an effort to ascertain Wilson’s informed
decision or whether his lawyer simply expressed his disagreement with Wilson’s
desires about an appeal and made his decision for him. See Thompson, 504 F.3d at
1207 (explaining that “simply asserting the view that an appeal would not be
successful does not constitute ‘consultation’ in any meaningful sense”).
Importantly, if Wilson’s lawyer performed deficiently in not adequately consulting
with him, prejudice would be presumed; and Wilson would be entitled to an
appeal.
On these facts, we conclude that the district court erred in dismissing
Wilson’s claim and in failing to conduct an evidentiary hearing to develop the
content of the communications between Wilson and his lawyer. On remand, we
instruct the district court to conduct an evidentiary hearing to elucidate this
information.
VACATED AND REMANDED.
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