[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-15791 September 17, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket Nos.
04-01403-CV-T-27-MSS
02-00442-CR-T-2
VICTOR OTERO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 17, 2007)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
In 2003, Victor Otero pleaded guilty to one count of possessing with the
intent to distribute five or more kilograms of a mixture or substance containing a
detectable amount of cocaine while on board a speed boat subject to the
jurisdiction of the United States, in violation of 46 App. U.S.C. §§ 1903(a) and
1903(g) and 21 U.S.C. § 960(b)(1)(B)(ii). Otero, who was represented by a lawyer
in the district court proceedings, was sentenced to 135 months in federal prison.
Otero did not appeal his conviction or sentence.
In 2004, Otero, without representation, filed a motion pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence. Among other things, Otero
alleged that his trial lawyer rendered constitutionally ineffective assistance when
he failed to file a notice of appeal of Otero’s 135-month sentence even though
Otero specifically “insisted” that he do so. The district court scheduled an
evidentiary hearing on Otero’s ineffective assistance claim and appointed a new
lawyer to represent him. Following the evidentiary hearing, the district court
rejected Otero’s ineffective assistance claim, expressly finding Otero’s “testimony
that he directed his attorney to appeal is not credible.” The district court
considered and rejected Otero’s other claims on the briefs and they are not before
us in this appeal. The district court denied Otero’s subsequent request for a
certificate of appealability.
2
We granted a certificate of appealability on two issues:
(1) Whether counsel’s communications with Otero regarding his
right to appeal were sufficient to fulfill his duty to consult. See
United States v. Thompson, 481 F.3d 1297 (11th Cir. 1997).
(2) Whether, if counsel did not fulfill his duty to consult, Otero has
shown a reasonable probability that he would have appealed.
See id.
After a thorough review of the briefs, the record, and the relevant legal
authority, we conclude that Otero’s trial lawyer had no constitutional duty to
consult Otero about an appeal and thus did not render constitutionally ineffective
assistance by failing to do so.1 Accordingly, we affirm the district court’s
judgment denying Otero’s § 2255 motion.
I. DISCUSSION
“In a Section 2255 proceeding, we review legal issues de novo and factual
findings under a clear error standard.” United States v. Walker, 198 F.3d 811, 813
(11th Cir. 1999).
1
We will assume for the sake of argument that Otero’s lawyer failed to consult
with Otero about his appeal options — that is, failed to “advis[e] [Otero] about the advantages
and disadvantages of taking an appeal” and failed to “mak[e] a reasonable effort to discover
[Otero’s] wishes.” Roe v. Flores-Ortega, 528 U.S. 470, 478, 120 S. Ct. 1029, 1035 (2000). This
means the answer to the first COA issue is no. However, for the reasons discussed in the text,
the failure of Otero’s lawyer in this regard does not itself constitute deficient performance
because there was, under the circumstances of this case, no constitutional duty to consult in the
first place. We therefore need not address the second COA issue.
3
At the outset, we must reject Otero’s assertion that he directed his lawyer to
file a notice of appeal on his behalf. The district court heard live testimony on this
issue from Otero, Otero’s trial lawyer, and the Spanish-English interpreter who
participated in Otero’s sentencing hearing. The district court expressly credited
the testimony of Otero’s lawyer,2 who said that Otero never instructed him to file a
notice of appeal, and expressly discredited Otero’s contrary testimony that he did
in fact give such instructions. We must respect the district court’s credibility
determination on this issue; the district court’s factual finding is not clearly
erroneous. See Thompson v. United States, 481 F.3d 1297, 1300 (11th Cir. 2007).
We thus conclude that Otero did not direct his lawyer to file a notice of appeal.
We have been told by the Supreme Court that in cases like this — “cases
where the defendant [does not] instruct[] counsel to file an appeal” — “the
question whether counsel performed deficiently by not filing a notice of appeal is
best answered by . . . asking a separate, but antecedent, question: whether counsel
in fact consulted with the defendant about an appeal.” Flores-Ortega, 528 U.S. at
478, 120 S. Ct. at 1035. As we noted above, we will assume for the sake of
argument that Otero’s lawyer did not “consult” — as that term is used in Flores-
2
The testimony of Otero’s lawyer was corroborated by the testimony of the
interpreter.
4
Ortega — with Otero about an appeal.3 Given this assumption, the dispositive
question in this appeal is “whether counsel’s failure to consult with the defendant
itself constitutes deficient performance.” Id.
A criminal defense lawyer is not under a per se constitutional obligation to
consult with his or her client about an appeal. In some cases, the Sixth
Amendment requires such consultation; in others, it does not. “We cannot say, as
a constitutional matter, that in every case counsel’s failure to consult with the
defendant about an appeal is necessarily unreasonable, and therefore deficient.”
Flores-Ortega, 528 U.S. at 479, 120 S. Ct. at 1036. The Supreme Court has
rejected a bright-line rule in this context because such a rule would be
“inconsistent with Strickland’s4 holding that ‘the performance inquiry must be
whether counsel’s assistance was reasonable considering all the circumstances.’”
3
The testimony of Otero’s lawyer, which was credited by the district court, was that
he did consult with and advise Otero on three occasions concerning the appeal waiver. He
advised Otero that with the guilty plea he would likely receive a sentence within the guideline
range of 135 to 168 months (that is, receiving acceptance of responsibility and safety valve
reductions), and that if he received such a sentence, there would be no promising basis to appeal.
He fully advised Otero about the appeal waiver, although counsel also told Otero that even
though he had signed the appeal waiver, counsel would nevertheless file a notice of appeal if
requested (although it would probably be futile). Finally, counsel told Otero he intended to seek
a minor role reduction (which would further reduce the likely sentence), but that this was only a
possibility. However, counsel acknowledged that, after the sentence was imposed, he did not
consult with Otero about appealing. Accordingly, we assume arguendo (but expressly do not
decide) that counsel did not consult with Otero as that term is contemplated in Flores- Ortega and
Thompson.
4
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
5
Id. at 478, 120 S. Ct. at 1035.
Rather than countenancing an inflexible rule, the Court in Flores-Ortega
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.” Id. at 480, 120 S. Ct. at 1036.
This inquiry is informed by several “highly relevant” factors, including: whether
the conviction follows a guilty plea, whether the defendant received the sentence
he bargained for, and “whether the plea [agreement] expressly . . . waived some or
all appeal rights.” Id.
Here, Otero’s conviction was the result of a guilty plea, which tends to
indicate that he was interested in “seek[ing] an end to judicial proceedings.” Id.
And although his sentence of 135 months was lengthier than his lawyer told him
he might possibly receive if the court were to grant him a minor-role reduction
under the Sentencing Guidelines, his lawyer advised Otero that he would probably
receive a sentence within the range of 135 to 168 months and that there would be
no promising appeal of such a sentence. After receiving and understanding this
advice, Otero explicitly agreed as part of his guilty plea to waive the right to
6
challenge on appeal any application of the Guidelines (with exceptions which are
not relevant). Otero actually received a sentence of 135 months, the low end of
the guideline range predicted by his lawyer.
In answering the question of whether a rational defendant would want to
appeal his sentence, it is 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. See Flores-Ortega, id. at 480, 120 S.Ct. at
1036. All those factors weigh heavily in favor of the government in this case.
The plea agreement signed by Otero contained a typical appeal-waiver provision,
pursuant to which Otero “expressly waive[d] the right to appeal [his] sentence,
directly or collaterally, on any ground.” This broad waiver contained four
exceptions. Those exceptions allowed Otero to appeal (1) “an upward departure
by the sentencing judge,” (2) “a sentence above the statutory maximum,” (3) “a
sentence in violation of the law apart from sentencing guidelines,” or (4) any
sentence if the Government appealed.5 Otero does not argue that any of these
exceptions apply in this case. Therefore, on account of the plea agreement’s broad
appeal waiver, any appeal taken by Otero would have been frivolous and would
5
The district court rejected Otero’s allegation (also contained in his motion for
relief under § 2255) that his sentence should be set aside because he did not fully understand the
terms of his plea agreement. Otero does not challenge that ruling on appeal.
7
have been an appeal that no rational defendant would have taken.
The only evidence relied upon by Otero to establish that he showed any
interest in appealing is his own testimony at the evidentiary hearing in which he
said that (1) he instructed his lawyer (through the interpreter, at the conclusion of
the sentencing hearing) to file a notice of appeal and that (2) he tried to contact his
lawyer via letter and telephone to communicate this request. As we noted above,
however, the district court discredited Otero’s testimony on both of these points,
and we are bound to respect the court’s factual finding. We therefore conclude
that there is no evidence indicating that Otero reasonably demonstrated to his
lawyer any interest in appealing his sentence. To the contrary, Otero’s lawyer
testified that Otero never indicated a desire to appeal. The district court, crediting
counsel’s testimony, so found. Indeed, the district court found: “Prior to
sentencing, Petitioner agreed with Ostrander [his counsel] that no viable appeal
would be available if a sentence within the guideline range was imposed.”
Because no rational defendant in Otero’s position would have sought to
appeal in light of the broad appeal waiver, and because Otero did not communicate
to his lawyer a desire to appeal, we conclude that Otero’s lawyer was not under a
constitutional obligation to consult Otero about an appeal.
8
II. CONCLUSION
For these reasons, we conclude that the performance of Otero’s trial
lawyer was not constitutionally deficient. Accordingly, the district court’s
judgment denying Otero’s § 2255 motion is
AFFIRMED.
9