[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-11012 March 13, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket Nos. 05-22764-CV-PAS
04-20035-CR-PAS
MARCIAL CUERO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 13, 2008)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Federal prisoner Marcial Cuero, with the assistance of counsel, appeals the
district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence. We
issued a certificate of appealability (“COA”) as to whether the district court erred
in denying Cuero’s claim that his trial counsel was ineffective for failing to file a
notice of appeal. Cuero argues that his trial counsel should have filed an appeal
because his counsel did not sufficiently consult with him about an appeal. Cuero
also argues that his trial counsel incorrectly advised him that he was barred from
appealing because of the appellate waiver in his plea bargain.
I. Scope of COA
As a preliminary matter, we must determine if Cuero’s incorrect-advice
argument is within the scope of the COA. To obtain a COA, the prisoner must
make a “substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Appellate review is limited to the issues specified in the COA.
Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).
Since Cuero’s incorrect-advice argument is outside the scope of the COA,
we will not consider it further. See id.
II. Duty to Consult
In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal
conclusions de novo and factual findings for clear error. Lynn v. United States, 365
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F.3d 1225, 1232 (11th Cir. 2004). A claim of ineffective assistance of counsel is a
mixed question of law and fact that we review de novo. Caderno v. United States,
256 F.3d 1213, 1216-17 (11th Cir. 2001). We allot “substantial deference to the
factfinder . . . . in reaching credibility determinations with respect to witness
testimony.” United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003)
(quotation omitted).
In Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029 (2000), the Supreme
Court held that Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984),
applies to determine whether counsel was ineffective for failing to file a notice of
appeal. Flores-Ortega, 528 U.S. at 477, 120 S. Ct. at 1034. Under Strickland, a
movant demonstrates ineffective assistance of counsel by showing: “(1) that
counsel’s representation fell below an objective standard of reasonableness, and (2)
that counsel’s deficient performance prejudiced the defendant.” Id. at 476-77, 120
S. Ct. at 1034 (quotation and citations omitted).
With respect to the first prong of Strickland, whether counsel’s
representation fell below an objective standard of reasonableness, the Supreme
Court reaffirmed that “an attorney who fails to file an appeal on behalf of a client
who specifically requests it acts in a professionally unreasonable manner per se.”
Gomez-Diaz v. United States, 433 F.3d 788, 791-92 (11th Cir. 2005) (citing
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Flores-Ortega, 528 U.S. at 477, 120 S. Ct. at 1035). If the defendant does not
instruct his counsel to file an appeal, counsel’s performance would be
constitutionally adequate if he consulted with the defendant about an appeal.
Flores-Ortega, 528 U.S. at 478, 120 S. Ct. at 1035.
The Supreme Court defined the term “consult” specifically to mean
“advising the defendant about the advantages and disadvantages of taking an
appeal, and making a reasonable effort to discover the defendant’s wishes.” Id.
“[C]ounsel has a constitutionally imposed duty to consult with the defendant about
an appeal when there is reason to think either (1) that a rational defendant would
want to appeal (for example, because there are nonfrivolous grounds for appeal), or
(2) that this particular defendant reasonably demonstrated to counsel that he was
interested in appealing.” Id. at 480, 120 S. Ct. at 1036. To determine if a rational
defendant would want to appeal, we consider it “relevant to ask whether there are
any potential non-frivolous grounds for appeal, whether there was a guilty plea,
and whether the plea expressly waived the right to appeal.” Otero v. United States,
499 F.3d 1267, 1271 (11th Cir. 2007). Whether the defendant reasonably
demonstrated to counsel that he was interested in appealing is a factual finding that
we review for clear error. Id. at 1269, 1271.
With respect to the second prong of the Strickland test, whether counsel’s
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deficient performance prejudiced the defendant, the Flores-Ortega Court held that
“to show prejudice in these circumstances, a defendant 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., 528 U.S. at 484, 120 S.
Ct. at 1038. The defendant need not show the putative merits of such an appeal.
Id., 528 U.S. at 485-86, 120 S. Ct. at 1039-40; Gomez-Diaz, 433 F.3d at 793.
Since a rational defendant would not have been interested in an appeal in
this case and the record supports the district court’s finding that Cuero never
indicated any interest in an appeal, trial counsel did not have a constitutional duty
to consult with Cuero about an appeal. Thus, even if trial counsel insufficiently
consulted with Cuero, it did not amount to ineffective assistance of counsel.
III. Conclusion
Having reviewed the record and the parties’ briefs, we conclude that the
district court’s denial of Cuero’s § 2255 motion is due to be affirmed.
AFFIRMED.
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