                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            NOV 01, 2007
                             No. 07-11363                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                  D. C. Docket Nos. 05-08014-CV-LSC-M
                          and 03-00432-CR-M-D

RAVIKUMAR GHANSHYMBHA PATEL,


                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

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

                           (November 1, 2007)

Before TJOFLAT, BLACK and FAY, Circuit Judges.

PER CURIAM:
      Ravikumar Ghanshymbha Patel, a pro se federal prisoner serving a 135-

month sentence for one count of conspiracy to possess and distribute

pseudoephedrine knowing it would be used to manufacture methamphetamine, in

violation of 21 U.S.C. §§ 846 and 841(c)(2), and three counts of possession and

distribution of pseudoephedrine with reason to believe it would be used to

manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2), appeals the

district courts’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentence. We granted a certificate of appealability (“COA”) on the

following issue only:

      Whether the district court erred in finding that the appeal waiver in the
      appellant’s plea agreement barred the claims in his 28 U.S.C. § 2255
      motion that his trial counsel was ineffective for coercing him to plead
      guilty and his appellate counsel was ineffective for failing to file a
      notice of appeal after the appellant specifically requested counsel to
      do so?

      Patel argues that counsel failed to provide effective assistance, as required

by the Supreme Court’s decision in Roe v.Flores-Ortega, 528 U.S. 470, 120 S.Ct.

1029, 145 L.Ed.2d 985 (2000), because he specifically asked counsel to file an

appeal, but counsel ignored his request. He contends that because he specifically

asked counsel to file an appeal, the district court erred by failing to conduct an

evidentiary hearing. Second, Patel argues that his guilty plea and appeal waiver

were entered into involuntarily as a result of the misleading advice and information

                                           2
he received from counsel, as well as coercion from his family members, who

counsel unduly influenced. He asserts that the appeal waiver does not bar his

challenge to the validity of his plea or the waiver itself. For the reasons set forth

more fully below, we vacate and remand in part and affirm in part.

      Patel pled guilty pursuant to a written plea agreement containing a sentence

appeal waiver, which provided in relevant part:

      Defendant’s right to an appeal and his right to file a motion pursuant
      to 28 U.S.C. § 2255 have been explained to him and he understands
      those rights. As a part of this plea agreement, Defendant knowingly,
      intelligently, and voluntarily waives his right to appeal his
      conviction(s) and sentence, and to challenge his conviction and
      sentence pursuant to 28 U.S.C. § 2255.

The district court denied Patel’s § 2255 motion, finding that his claims were barred

by a valid appeal waiver.

                                           I.

      A district court’s legal conclusions in a 28 U.S.C. § 2255 proceeding are

reviewed de novo and its factual findings are reviewed for clear error. Lynn v.

United States, 365 F.3d 1225, 1232 (11th Cir. 2004). Whether a defendant has

received ineffective assistance of counsel is a mixed question of fact and law

reviewed de novo. Mincey v. Head, 206 F.3d 1106, 1142 (11th Cir. 2000).

      The legal standard governing the disposition of ineffective-assistance-of-

counsel claims is derived from the benchmark case of Strickland v. Washington,

                                           3
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme

Court established a two-prong test for adjudicating ineffective-assistance-of-

counsel claims. First, the movant must show that counsel’s performance was

deficient. Id. at 687, 104 S.Ct. at 2064. The proper measure of attorney

performance is “reasonableness under prevailing professional norms.” Id. at 688,

104 S.Ct. at 2065. Counsel is “strongly presumed” to have rendered adequate

assistance and to have exercised reasonable professional judgment. Id. at 690, 104

S.Ct. at 2066. Second, the movant must show that counsel’s deficient performance

prejudiced the defense. Id. at 687, 104 S.Ct. at 2064. To prove prejudice, the

movant must show that there is a reasonable probability that the outcome of the

proceedings would have been different but for counsel’s unprofessional errors. Id.

at 694, 104 S.Ct. at 2068.

      In Flores-Ortega, the Supreme Court applied the test set forth in Strickland

and reiterated the long established rule that a lawyer who disregards specific

instructions from the defendant to file a notice of appeal acts in a professionally

unreasonable manner. 528 U.S. at 476-77, 120 S.Ct. at 1034-35. The Supreme

Court further held that, even when a defendant has not specifically instructed his

counsel to file an appeal, in order to determine whether counsel performed

deficiently, a court must inquire into whether counsel in fact consulted with the



                                           4
defendant about an appeal. Id. at 478, 120 S.Ct. at 1035. “If so, the attorney has

only acted unreasonably if he has ignored the client’s wishes to appeal the case . . .

. If not, the court must further inquire whether the attorney had an affirmative duty

to consult.” Gomez-Diaz v. United States, 433 F.3d 788, 791-92 (11th Cir. 2005)

(citing Flores-Ortega, 528 U.S. at 478, 120 S.Ct. at 1035). The duty to consult

arises when either: (1) any rational defendant would want to appeal; or (2) the

defendant reasonably demonstrated an interest in appealing. Id. (citing Flores-

Ortega, 528 U.S. at 480, 120 S.Ct. at 1036). “[T]o show prejudice in these

circumstances, a defendant must demonstrate that there is a reasonable probability

that, but for counsel’s deficient failure to consult with him about an appeal, he

would have timely appealed.” Flores-Ortega, 528 U.S. at 484, 120 S.Ct. at 1038.

      In Gomez-Diaz, we were presented with a case factually and procedurally

similar to the instant appeal. In that case, Gomez-Diaz pled guilty pursuant to a

written plea agreement containing an appeal waiver. 433 F.3d at 790. Gomez-

Diaz did not file a direct appeal. Id. Instead, he filed a § 2255 motion, wherein he

alleged, inter alia, that his court-appointed counsel was ineffective for failing to file

a notice of appeal as he requested. Id. The district court denied the § 2255 motion

without an evidentiary hearing, on the basis that Gomez-Diaz failed to identify any

ground for appeal falling within the exceptions listed in the appeal waiver. Id. We



                                            5
granted a COA to address the question of “[w]hether [Gomez-Diaz] was denied

effective assistance of counsel when counsel failed to file a timely notice of appeal

after appellant allegedly requested counsel to do so.” Id. In addressing this issue,

we also addressed two subsidiary questions: (1) “whether Gomez-Diaz’s § 2255

motion states a claim that entitles him to an evidentiary hearing”; and (2) if yes,

“whether [Gomez-Diaz’s] limited appeal waiver precludes the grant of relief unless

he can show that he has meritorious grounds for appeal.” Id.

      After examining the analytical framework set forth in the Supreme Court’s

decisions in Strickland and Flores-Ortega, we held that Gomez-Diaz did in fact

state a claim sufficient to entitle him to an evidentiary hearing in the district court.

Id. at 791-93. Construing Gomez-Diaz’s pleadings liberally, we remanded the case

to the district court with instructions to conduct an evidentiary hearing to

determine whether Gomez-Diaz’s initial statements were sufficient to trigger a per

se duty to appeal under Flores-Ortega, and, if not, whether counsel fulfilled his

constitutional duty to consult with Gomez-Diaz regarding his desire to appeal. Id.

at 792-93. We held also that the reasoning of Flores-Ortega applied “with equal

force” where the defendant has waived his appellate rights. Id. at 793.

      Here, the district court erred by concluding that Patel waived his ineffective-

assistance-of-counsel claim. In denying Patel’s ineffective-assistance-of-counsel



                                            6
claim, the district court found that the claim was barred because Patel had

knowingly and voluntarily agreed to the appeal waiver during the plea colloquy

and had not presented any evidence to rebut the presumption that his statements

were true and correct. As we determined in Gomez-Diaz, however, an appeal

waiver does not relieve counsel of the duty to file a notice of appeal on request.

Thus, the district court incorrectly found that this claim was precluded by the fact

that Patel entered into a seemingly valid appeal waiver. Moreover, as conceded by

the government, the record in this case is insufficient to determine whether Patel

actually requested that his attorney file an appeal. In his § 2255 motion and

accompanying memorandum, Patel asserted that he specifically requested his

attorney to file an appeal of his sentence and conviction, but noted that counsel

failed to do so and did not provide any reasons for ignoring his request. Patel

renewed these arguments on appeal. The record demonstrates that the district court

did not address Patel’s assertion that he asked counsel to file an appeal. The

inquiry as to whether Patel actually requested counsel to file an appeal, which has

not taken place in this case, is an essential first step in the analysis under Flores-

Ortega and Gomez-Diaz.

      Accordingly, we vacate and remand to the district court to conduct an

evidentiary hearing into: (1) whether Patel, in fact, requested counsel to file a



                                            7
direct appeal sufficient to trigger the per se duty to appeal set forth in Flores-

Ortega; and (2) whether, if Patel failed to request counsel to file an appeal, counsel

fulfilled his constitutional duty to consult with Patel by advising Patel of the

advantages and disadvantages of filing an appeal and making a reasonable effort to

comply with Patel’s wishes.

                                           II.

      We review the district court’s legal conclusions in a § 2255 proceeding de

novo. Lynn, 365 F.3d at 1232. A claim of ineffective assistance of counsel is a

mixed question of law and fact that is also reviewed de novo. Mincey, 206 F.3d at

1142. Appeal waivers are valid if they are made knowingly and voluntarily.

Williams v. United States, 396 F.3d 1340, 1341 (11th Cir. 2005). We have held

that a valid appeal waiver precludes § 2255 claims based on ineffective assistance

of counsel at sentencing. Williams, 396 F.3d at 1342. We have not specifically

reached the issue of whether a valid appeal waiver can preclude § 2255 claims

based on ineffective assistance of counsel that challenge the validity of the plea or

the waiver itself. In Williams, however, we noted that “there may be a distinction

between a § 2255 claim of ineffective assistance in entering or negotiating the plea

versus a claim of ineffectiveness at sentencing or a claim challenging the validity

of the plea or agreement.” Id. n.2.



                                            8
      Other circuits that have addressed the issue have concluded that a valid

appeal waiver does not preclude claims brought pursuant to § 2255 that challenge

the validity of the defendant’s plea or the appeal waiver based on the ineffective

assistance of counsel. See United States v. White, 307 F.3d 336, 341 (5th Cir.

2002) (indicating that “a waiver of appeal may not be enforced against a section

2255 petitioner who claims that ineffective assistance of counsel rendered that

waiver unknowing or involuntary”); United States v. Cockerham, 237 F.3d 1179,

1187 (10th Cir. 2001) (holding that “a plea agreement waiver of postconviction

rights does not waive the right to bring a § 2255 petition based on ineffective

assistance of counsel claims challenging the validity of the plea or the waiver”);

DeRoo v. United States, 223 F.3d 919, 924 (8th Cir. 2000) (holding that a “waiver

of the right to seek section 2255 post-conviction relief does not waive defendant’s

right to argue, pursuant to that section, that the decision to enter into the plea was

not knowing and voluntary because it was the result of ineffective assistance of

counsel”). In DeRoo, the Eighth Circuit reasoned that

      [a] decision to enter into a plea agreement cannot be knowing and
      voluntary when the plea agreement itself is the result of advice outside
      the range of competence demanded of attorneys in criminal cases.
      Therefore, justice dictates that a claim of ineffective assistance of
      counsel in connection with the negotiation of a cooperation agreement
      cannot be barred by the agreement itself-the very product of the
      alleged ineffectiveness.



                                            9
DeRoo, 223 F.3d at 924 (citations and quotations omitted).

      Here, the appeal waiver in Patel’s plea agreement precludes both direct

appeal and collateral review of both his sentence and conviction. Patel’s claim in

his § 2255 motion, however, explicitly challenges the validity of his guilty plea.

Accordingly, in light of these holdings, the district court erred in dismissing Patel’s

claim based on a finding that it was barred by the appeal waiver. See Williams,

396 F.3d at 1342 n.2. Nevertheless, we need not vacate and remand this issue to

the district court for an evidentiary hearing because the record is sufficient to

permit meaningful appellate review as to this claim, and the record supports the

conclusion that counsel was not ineffective for misleading Patel concerning his

sentence or otherwise coerced him into pleading guilty. See Parks v. City of

Warner Robins, 43 F.3d 609, 613 (11th Cir. 1995) (indicating that we may affirm a

decision of the district court based on any adequate ground, even if it is different

from the one relied on by the district court).

      There is a strong presumption that statements made during the plea colloquy

are true. United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).

Consequently, a defendant bears a heavy burden to show that his statements under

oath were false. United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). A

careful reading of Patel’s § 2255 motion and supporting memorandum shows that



                                           10
Patel contends that his plea was involuntary because counsel, his parents and uncle

coerced him into pleading guilty. Patel insists that counsel promised that, if he

pled guilty, he would receive a sentence of two to three years’ imprisonment, and

would be returned to India within six months, but would receive a much longer

sentence if he proceeded to trial and was unsuccessful. Although he insisted that

he wanted to proceed to trial, his family members instructed him to listen to

counsel and to plead guilty. Patel’s allegations are in direct conflict with his

statements during the plea colloquy, and he has produced no evidence to challenge

the veracity of his sworn testimony. Indeed, his self-serving statements appear to

be a last-minute attempt to escape the preclusive effect of the appeal waiver.

While there is some question as to whether counsel expressly promised Patel that

he would receive a specific sentence, the record demonstrates that Patel did not

mention this promise during the plea colloquy, and, instead, stated that he

understood that his sentence could be different from what counsel had advised and

confirmed that no one had promised him anything in exchange for his plea.

      Moreover, during the plea colloquy, Patel stated that he was satisfied with

counsel’s performance. He indicated that he read, understood, and signed the

written plea agreement and confirmed that counsel had reviewed the terms and

conditions of that agreement with him. The court specifically questioned Patel



                                           11
about the appeal waiver, asking if he understood that he was giving up his right to

appeal and to file a motion pursuant to § 2255. Patel stated that he understood.

Patel stated also that no one had promised him anything or had otherwise coerced

him into pleading guilty. Patel further stated that he had discussed the sentencing

guidelines with counsel and confirmed that he understood that his sentence could

be significantly higher or lower than what counsel had predicted. Patel has failed

to rebut the presumption that these statements were true and correct.

      Additionally, Patel contends that he pled guilty because his cultural

background commands that he obey his elders, who insisted that he plead guilty.

Although Patel asserts that counsel facilitated this coercion, we have held that

“[u]navoidable influence or pressure from sources such as codefendants, friends or

family does not make a plea involuntary; it is only where the plea is coerced by

conduct fairly attributable to the [government] that the due process clause . . . is

offended.” Stano v. Dugger, 921 F.2d 1125, 1142 (11th Cir. 1991) (addressing a

state prisoner’s claims under 28 U.S.C. § 2254). Therefore, because coercion from

family members did not render his plea or appeal waiver involuntary, Patel is

unable to rebut the presumption that his statements during the plea colloquy were

true and correct. Accordingly, despite the district court’s error in finding that his

claim was barred by the valid appeal waiver, we affirm as to this issue.



                                           12
      In light of the foregoing, we vacate and remand to the district court for an

evidentiary hearing to determine whether Patel requested counsel to file an appeal

and, whether, if Patel failed to request counsel to file an appeal, counsel fulfilled

his constitutional duty to consult with Patel regarding his desire to appeal. We

affirm Patel’s conviction and reject his claim that his plea and appeal waiver were

involuntarily entered into based on the ineffective assistance of counsel.

      VACATED AND REMANDED in part; AFFIRMED in part




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