[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 28, 2008
THOMAS K. KAHN
No. 06-14826
CLERK
________________________
D. C. Docket Nos. 04-02546-CV-T-30-EAJ & 03-00184-CR-T-3
CLARENCE JENKINS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 28, 2008)
Before CARNES and MARCUS, Circuit Judges, and DUBOSE,* District Judge.
PER CURIAM:
*
Honorable Kristi K. DuBose, United States District Judge for the Southern District of
Alabama, sitting by designation.
After hearing conflicting testimony and considering all of the evidence, the
district court entered findings of fact, which are not clearly erroneous. In light of
those findings of fact, the district court’s decision rejecting the claim that trial
counsel rendered ineffective assistance by failing to file a notice of appeal within
ten days following sentencing is due to be affirmed on the basis of Devine v.
United States, 520 F.3d 1286 (11th Cir. 2008). The facts of that case are
materially indistinguishable from those of this case.1
1
The second issue on which we granted a certificate of appealability, involving the
failure of trial counsel to file a Federal Rule of Appellate Procedure 4(b)(4) motion, has been
abandoned because it was not raised in the Appellant’s brief.
2