                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-14936                ELEVENTH CIRCUIT
                                                         SEPTEMBER 23, 2010
                         Non-Argument Calendar
                       ________________________               JOHN LEY
                                                               CLERK

               D. C. Docket Nos. 07-00261-CV-3-LAC/MD,
                            06-00111-CR-3-L

CHRISTOPHER MICHAEL STANTON,
a.k.a. Christopher Stanton,


                                                         Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

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

                           (September 23, 2010)

Before BLACK, MARTIN and COX, Circuit Judges.

PER CURIAM:
       Christopher Stanton appeals the denial of his 28 U.S.C. § 2255 motion for

habeas relief. Stanton contends—and the Government concedes—the district

court erred in finding his counsel was not ineffective for failing to file a direct

appeal.1 After review, we reverse and remand the district court’s denial of

Stanton’s § 2255 motion.2

       A direct appeal of a federal conviction is a matter of right. Rodriquez v.

United States, 395 U.S. 327, 329–30 (1969). “[A] lawyer who disregards specific

instructions from the defendant to file a notice of appeal acts in a manner that is

professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). In

cases where the defendant has not instructed counsel to file an appeal, counsel

nevertheless has a “constitutionally imposed duty to consult with the defendant

about an appeal when . . . [the] particular defendant reasonably demonstrated to

counsel that he was interested in appealing.” Id. at 480. The duty to consult

“requires informing a client about his right to appeal, advising the client about the


       1
           Specifically, the Government concedes Stanton’s counsel failed to “consult” with him
about an appeal, as that term has been defined by binding precedent. The Government does not
concede counsel disregarded Stanton’s request to file a direct appeal. We do not consider this
latter issue as counsel’s failure to consult entitles Stanton to the only relief he seeks on appeal.
       2
          When reviewing the denial of a § 2255 motion, we review a district court’s factual
findings for clear error and legal issues de novo. Lynn v. United States, 365 F.3d 1225, 1232
(11th Cir. 2004). An ineffective assistance of counsel claim is a mixed question of law and fact
that is subject to de novo review. Caderno v. United States, 256 F.3d 1213, 1216–17 (11th Cir.
2001).

                                                  2
advantages and disadvantages of taking an appeal, and making a reasonable effort

to determine whether the client wishes to pursue an appeal, regardless of the

merits of such an appeal.” Thompson v. United States, 504 F.3d 1203, 1206 (11th

Cir. 2007). In cases where counsel has failed to conduct a proper consultation, the

defendant must demonstrate “there is a reasonable probability that, but for

counsel’s deficient failure to consult with him about an appeal, he would have

timely appealed.” Roe, 528 U.S. at 484.

      In Thompson, we addressed the issue of adequacy of consultation. 504 F.3d

at 1206. Undisputed testimony in Thompson showed (1) Thompson expressed to

counsel that he was unhappy with his sentence directly after the court imposed it;

(2) counsel told Thompson he had a right to appeal, but noted he did not think an

appeal would be worthwhile, without explaining the reasoning behind this

position; (3) Thompson responded “fine;” and (4) the exchange lasted no more

than five minutes. Id. at 1207. Citing Roe, we concluded the consultation was

inadequate, stating “[s]imply asserting the view that an appeal would not be

successful does not constitute ‘consultation’ in any meaningful sense.” Id. We

held that counsel made no effort “to discover Thompson’s informed wishes

regarding an appeal,” and concluded evidence that Thompson was dissatisfied




                                          3
with his sentence and asked his attorney about appealing was sufficient to show

the requisite prejudice. Id. at 1207–08.

      Here, there is no dispute Stanton reasonably demonstrated an interest in

appealing. Counsel admitted Stanton (1) requested an appeal after the jury

returned its verdict, and (2) nodded his head when counsel told him there were no

appealable issues. In light of this evidence, the Government has conceded Stanton

“reasonably demonstrated to [counsel] that he was interested in appealing,” and

that counsel “had a duty to consult with [Stanton] about an appeal.” We agree.

Counsel’s statement that there were no appealable issues without further

explanation did not constitute adequate consultation. See Thompson, 504 F.3d at

1206–07. Moreover, Stanton has demonstrated that, but for counsel’s failure to

perfect an appeal on his behalf, he would have appealed. Stanton expressed

interest in his appeal, and requested counsel’s help in reducing his sentence.

Therefore, there is a reasonably probability Stanton would have exercised his right

to appeal.

      Stanton is entitled to pursue an out-of-time appeal of his conviction and

sentence. Accordingly, we reverse and remand the district court’s denial of

Stanton’s § 2255 motion.

      REVERSED AND REMANDED.

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