[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14936 ELEVENTH CIRCUIT
SEPTEMBER 23, 2010
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D. C. Docket Nos. 07-00261-CV-3-LAC/MD,
06-00111-CR-3-L
CHRISTOPHER MICHAEL STANTON,
a.k.a. Christopher Stanton,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 23, 2010)
Before BLACK, MARTIN and COX, Circuit Judges.
PER CURIAM:
Christopher Stanton appeals the denial of his 28 U.S.C. § 2255 motion for
habeas relief. Stanton contends—and the Government concedes—the district
court erred in finding his counsel was not ineffective for failing to file a direct
appeal.1 After review, we reverse and remand the district court’s denial of
Stanton’s § 2255 motion.2
A direct appeal of a federal conviction is a matter of right. Rodriquez v.
United States, 395 U.S. 327, 329–30 (1969). “[A] lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts in a manner that is
professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). In
cases where the defendant has not instructed counsel to file an appeal, counsel
nevertheless has a “constitutionally imposed duty to consult with the defendant
about an appeal when . . . [the] particular defendant reasonably demonstrated to
counsel that he was interested in appealing.” Id. at 480. The duty to consult
“requires informing a client about his right to appeal, advising the client about the
1
Specifically, the Government concedes Stanton’s counsel failed to “consult” with him
about an appeal, as that term has been defined by binding precedent. The Government does not
concede counsel disregarded Stanton’s request to file a direct appeal. We do not consider this
latter issue as counsel’s failure to consult entitles Stanton to the only relief he seeks on appeal.
2
When reviewing the denial of a § 2255 motion, we review a district court’s factual
findings for clear error and legal issues de novo. Lynn v. United States, 365 F.3d 1225, 1232
(11th Cir. 2004). An ineffective assistance of counsel claim is a mixed question of law and fact
that is subject to de novo review. Caderno v. United States, 256 F.3d 1213, 1216–17 (11th Cir.
2001).
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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 v. United States, 504 F.3d 1203, 1206 (11th
Cir. 2007). In cases where counsel has failed to conduct a proper consultation, the
defendant must demonstrate “there is a reasonable probability that, but for
counsel’s deficient failure to consult with him about an appeal, he would have
timely appealed.” Roe, 528 U.S. at 484.
In Thompson, we addressed the issue of adequacy of consultation. 504 F.3d
at 1206. Undisputed testimony in Thompson showed (1) Thompson expressed to
counsel that he was unhappy with his sentence directly after the court imposed it;
(2) counsel told Thompson he had a right to appeal, but noted he did not think an
appeal would be worthwhile, without explaining the reasoning behind this
position; (3) Thompson responded “fine;” and (4) the exchange lasted no more
than five minutes. Id. at 1207. Citing Roe, we concluded the consultation was
inadequate, stating “[s]imply asserting the view that an appeal would not be
successful does not constitute ‘consultation’ in any meaningful sense.” Id. We
held that counsel made no effort “to discover Thompson’s informed wishes
regarding an appeal,” and concluded evidence that Thompson was dissatisfied
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with his sentence and asked his attorney about appealing was sufficient to show
the requisite prejudice. Id. at 1207–08.
Here, there is no dispute Stanton reasonably demonstrated an interest in
appealing. Counsel admitted Stanton (1) requested an appeal after the jury
returned its verdict, and (2) nodded his head when counsel told him there were no
appealable issues. In light of this evidence, the Government has conceded Stanton
“reasonably demonstrated to [counsel] that he was interested in appealing,” and
that counsel “had a duty to consult with [Stanton] about an appeal.” We agree.
Counsel’s statement that there were no appealable issues without further
explanation did not constitute adequate consultation. See Thompson, 504 F.3d at
1206–07. Moreover, Stanton has demonstrated that, but for counsel’s failure to
perfect an appeal on his behalf, he would have appealed. Stanton expressed
interest in his appeal, and requested counsel’s help in reducing his sentence.
Therefore, there is a reasonably probability Stanton would have exercised his right
to appeal.
Stanton is entitled to pursue an out-of-time appeal of his conviction and
sentence. Accordingly, we reverse and remand the district court’s denial of
Stanton’s § 2255 motion.
REVERSED AND REMANDED.
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