[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-16503 MAY 8, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D.C. Docket Nos. 07-00015-CV-5-RS/AK, 06-00041-CR-5-R
MICHAEL DEWAYNE TENSLEY,
Petitioner–Appellant,
versus
UNITED STATES OF AMERICA,
Respondent–Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 8, 2009)
Before BIRCH, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Michael Dewayne Tensley, a counseled federal prisoner, appeals the district
court’s denial of his 28 U.S.C. § 2255 motion to vacate his conviction claiming
that his Sixth Amendment right to effective assistance of counsel was violated
because his lawyer did not file a notice of appeal of his life sentence. The district
court granted Tensley’s motion for a certificate of appealability (“COA”) for the
following issue: Whether Tensley “made a substantial showing of the denial of a
constitutional right, specifically the Sixth Amendment right to effective assistance
of counsel.”
In a § 2255 proceeding, we review a district court’s legal conclusions de
novo and factual findings for clear error. Lynn v. United States, 365 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 (2000), the Supreme Court held that
Strickland v. Washington, 466 U.S. 668 (1984), applies when determining whether
counsel was ineffective for failing to file a notice of appeal. Flores-Ortega, 528
U.S. at 477. “[W]here a defendant has not specifically instructed his attorney to
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file an appeal, we must still determine ‘whether counsel in fact consulted with the
defendant about an appeal.’” Thompson v. United States, 504 F.3d 1203, 1206
(11th Cir. 2007) (quoting Flores-Ortega, 528 U.S. at 478). The Supreme Court
held that “counsel 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.” Flores-Ortega, 528 U.S. at 480.
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. at 478. Such a
consultation assures that any waiver of the right to appeal is knowing and
voluntary. Thompson, 504 F.3d at 1206.
Upon review of the record and the parties’ briefs, we discern no reversible
error here. The magistrate judge made a determination based on testimony in the
evidentiary hearing that Tensley lacked credibility, and found that Tensley’s
testimony that he told his lawyer to file an appeal was in direct conflict with his
lawyer’s testimony that he had advised Tensley of his right to file an appeal, yet
Tensley did not wish to. His lawyer produced letters to Tensley supporting his
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contentions, and testified that he had discussed the right to appeal with Tensley on
three separate occasions and each time Tensley showed no interest in appealing his
sentence. On this record, we cannot say the district court’s finding that Tensley’s
lawyer indisputably consulted with Tensley was clearly erroneous. Accordingly,
we affirm the district court’s denial of Tensley’s § 2255 motion to vacate.
AFFIRMED.
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