United States Court of Appeals
For the Eighth Circuit
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No. 12-2262
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Brandi Jo Kennebeck
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the Northern District of Iowa - Sioux City
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Submitted: January 14, 2013
Filed: January 25, 2013
[Unpublished]
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Before BYE, MELLOY, and SMITH, Circuit Judges.
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PER CURIAM.
Brandi Kennebeck appeals from the district court's1 denial of her 28 U.S.C.
§ 2255 petition to set aside her conviction and sentence. We affirm.
1
The Honorable Donald O'Brien, United States District Judge for the Northern
District of Iowa.
I
On June 3, 2010, Kennebeck pleaded guilty to one count of conspiracy to
manufacture methamphetamine and one count of manufacturing methamphetamine,
pursuant to a plea agreement. The agreement also included a waiver of Kennebeck's
right to appeal her conviction directly or under § 2255, unless she claimed ineffective
assistance of counsel or her sentence (1) was contrary to the plea agreement, (2)
exceeded the maximum statutory penalty, or (3) was unconstitutionally defective. The
district court calculated Kennebeck's guideline range as 120 to 121 months, with a
statutory minimum of 120 months. Due to Kennebeck's substantial assistance, the
government moved for a below-guidelines sentence, which the court granted.
Accordingly, Kennebeck received a forty-percent reduction in sentence, amounting
to a total of seventy-two months' imprisonment. She did not appeal her sentence.
Kennebeck did, however, file a § 2255 motion through appointed counsel,
requesting the district court vacate, set aside, or correct her sentence. Kennebeck's
motion set forth five allegations of error, under the headings of prosecutorial
misconduct and ineffective assistance of counsel. At issue in this appeal is
Kennebeck's allegation that her trial attorney, Rees Douglas, was ineffective for
failing to file a direct appeal on her behalf after she asked him to do so. Following an
evidentiary hearing, the district court denied Kennebeck's motion. With respect to the
relevant claim of ineffective assistance, the court found Kennebeck had offered "no
evidence indicating she did, in fact, request [Douglas] file a notice of appeal."
Kennebeck v. United States, No. 11-CV-4063-DEO, 2012 WL 1565117, at *6 (N.D.
Iowa May 2, 2012). Kennebeck appeals, arguing the lower court clearly erred in so
finding.
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II
"We review de novo the district court's denial of a section 2255 motion."
Never Misses A Shot v. United States, 413 F.3d 781, 783 (8th Cir. 2005). "Failure to
file an appeal at a client's request is ineffective assistance of counsel for the purposes
of § 2255." United States v. Luke, 686 F.3d 600, 606 (8th Cir. 2012). Whether a
petitioner requested an appeal is a question of fact, which we review for clear error.
Id. "A bare assertion by the petitioner that [s]he made a request is not by itself
sufficient to support a grant of relief, if evidence that the fact-finder finds to be more
credible indicates the contrary proposition." Yodprasit v. United States, 294 F.3d 966,
969 (8th Cir. 2002) (citation omitted).
III
At the evidentiary hearing, Kennebeck testified that she called Douglas after her
sentencing hearing to express a desire to appeal her case, eliciting an explanation by
Douglas that filing an appeal on terms other than ineffectiveness of counsel would
violate the terms of her plea agreement. Kennebeck could not recall when this
conversation took place. In contrast, Douglas testified he did not remember her
making such a request. He noted, however, that if she had, he would have advised
Kennebeck against filing an appeal in light of the plea agreement. Douglas also
provided twenty documents for the district court's review, detailing his
communications with Kennebeck. None evidenced a request for an appeal by
Kennebeck.2
2
By joint stipulation, the parties have added a twenty-first letter to the record,
which Douglas inadvertently omitted from the record below. In it, Douglas notifies
Kennebeck that he has "not (yet?) heard anything about the government appealing the
case" and invites her to contact him with any questions she may have regarding the
court's judgment in her case. Contrary to Kennebeck's assertion, this letter—like the
other twenty letters—contains no indication that Kennebeck expressed a desire to
appeal her case.
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Under the circumstances, the district court did not clearly err in finding
Kennebeck had not met her burden to "present some credible, non-conclusory
evidence" of a request for an appeal. See Sanders v. United States, 341 F.3d 720, 722
(8th Cir. 2003). Other than "she said, he said" testimony offering conflicting accounts
of the parties' exchange, Kennebeck offers no evidence to support her position. And
assuming arguendo that Kennebeck raised the issue of an appeal with Douglas, she
does not claim to have expressed a desire to pursue this avenue of relief following his
admonition that filing an appeal would violate the terms of her plea agreement.
Accordingly, the district court did not clearly err in finding Douglas was not
ineffective for failing to file an appeal on Kennebeck's behalf.
The judgment of the district court is affirmed.
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