                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                            November 20, 2008
                             No. 08-10446                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                          D. C. Docket Nos.
              03-08045-CV-2-CLS-TMP & 03-00040-CR-2-C

COLLINS IRIS GASTON,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                           (November 20, 2008)

Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:
      Collins Iris Gaston, a federal prisoner, appeals the district court’s denial, on

remand from this Court, of his 28 U.S.C. § 2255 motion to vacate, set aside, or

correct sentence. On appeal, Gaston contends that the district court failed to make

any finding about whether his attorney, Tim Coyle, should have consulted with

him about filing a direct appeal and only found that Gaston had not specifically

instructed Coyle to file a direct appeal. Gaston asserts that the evidence

demonstrates that Coyle had a duty to “reach out and consult” with Gaston about

appealing.

      In a § 2255 proceeding, we review a district court’s legal conclusions de

novo and its factual findings for clear error. Lynn v. United States, 365 F.3d 1225,

1232 (11th Cir. 2004). Whether counsel is ineffective is a mixed question of law

and fact that we review de novo. United States v. Bender, 290 F.3d 1279,

1284 (11th Cir. 2002). Issues and contentions not timely raised in briefs are

deemed abandoned. United States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001).

      In Roe v. Flores-Ortega, 528 U.S. 470, 473-75, 120 S.Ct. 1029, 1033-34,

145 L.Ed.2d 985 (2000), the Supreme Court considered a case in which a state

defendant pled guilty to murder, but did not waive his right to appeal nor consent

to his attorney not filing a notice of appeal. The Supreme Court held that the test

in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), applies to



                                           2
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.” Flores-Ortega,

528 U.S. at 476-77, 120 S.Ct. at 1034 (internal quotation marks and internal

citations omitted).

      With respect to the 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 one acts in a professionally unreasonable manner. Id. at 477,

120 S.Ct. at 1035. The Court further 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. The Court elaborated:

      In making this determination, courts must take into account all the
      information counsel knew or should have known. . . . . Although not
      determinative, a highly relevant factor in this inquiry will be whether
      the conviction follows a trial or a guilty plea, both because a guilty
      plea reduces the scope of potentially appealable issues and because
      such a plea may indicate that the defendant seeks an end to judicial

                                           3
       proceedings. Even in cases when the defendant pleads guilty, the
       court must consider such factors as whether the defendant received the
       sentence bargained for as part of the plea and whether the plea
       expressly reserved or waived some or all appeal rights. Only by
       considering all relevant factors in a given case can a court properly
       determine whether a rational defendant would have desired an appeal
       or that the particular defendant sufficiently demonstrated to counsel
       an interest in an appeal.

Id. (internal citation omitted).

       In Devine v. United States, 520 F.3d 1286 (11th Cir. 2008), we addressed a

factually similar situation. There, the defendant had talked to his attorney after

sentencing and we assumed arguendo that counsel had not adequately consulted

with the defendant about appealing. We held that because there was no non-

frivolous ground for appeal – defendant had pled guilty, there was an appeal

waiver, and defendant had received a sentence at the bottom of the guidelines –

and because the district court had not erred when it made a factual finding that the

defendant had not communicated his desire to appeal, the defendant had not shown

ineffective assistance of counsel. 520 F.3d at 1288-89. There, the district court

credited the counsel’s testimony and discredited the defendant’s. Id. at 1289.

Counsel testified that he had told the defendant that an appeal would be futile and

that the defendant understood that. Id. Therefore, we held, counsel had no duty to

consult with his client about appealing. Id.

       Here, the district court expressly credited the attorney’s testimony that

                                           4
Gaston did not instruct him to file an appeal and Gaston does not challenge that

finding. Like the defendant in Devine, there were no nonfrivolous grounds for

appeal because Gaston received a sentence at the low-end of the guidelines and had

signed an appeal waiver. Because Gaston gave no indications that he wanted to

appeal and no rational defendant would have filed an appeal, his counsel did not

have a duty to consult with him about an appeal, and we affirm the district court’s

denial of Gaston’s § 2255 motion.

      AFFIRMED.




                                          5
