                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 December 1, 2015
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 15-6018
                                              (D.C. Nos. 5:14-CV-00404-F and
 SHELLY RENEE HENSON,                               5:12-CR-00194-F-1)
                                                      (W.D. of Okla.)
              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, HARTZ, and MORITZ, Circuit Judges. **


      Shelly Henson appeals the district court’s denial of her motion under 28

U.S.C. § 2255 to vacate, set aside, or correct her sentence. She claims her plea

counsel was constitutionally ineffective in failing to consult with her about a

possible appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
                                I. Background

      Henson defrauded prospective adoptive parents, adoption agencies, and

adoption law firms through an elaborate scheme that involved her feigning

pregnancy and offering the purported child for adoption. She pleaded guilty to

mail fraud. The district court sentenced her to sixty months in prison—well

above the twenty-one- to twenty-seven-month range suggested by the United

States Sentencing Guidelines. Henson did not appeal because counsel did not file

a notice of appeal within fourteen days of the entry of judgment. See Fed. R.

App. P. 4(b)(1)(A)(i).

      Henson then brought this § 2255 petition, alleging ineffective assistance of

counsel. She claims that her attorney breached a constitutional duty by failing to

consult with her about appealing. After an evidentiary hearing, the district court

denied the petition. The court found that counsel had adequately consulted with

Henson through their mail correspondence.

                                  II. Analysis

      We review the district court’s legal determinations de novo and its factual

conclusions for clear error. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.

2001). To succeed on her claim for ineffective assistance of counsel, Henson

must show that her counsel’s performance was deficient and that the deficiency

prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).



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      In determining whether failure to file a notice of appeal is deficient, we

first consider whether the attorney “disregard[ed] specific instructions from the

defendant to file a notice of appeal.” Roe v. Flores-Ortega, 528 U.S. 470, 477

(2000). Failure to heed the defendant’s instruction to appeal is professionally

unreasonable. Id. But “a defendant who explicitly tells his attorney not to file an

appeal plainly cannot later complain that, by following his instructions, his

counsel performed deficiently.” Id.

      If the defendant “neither instructs counsel to file an appeal nor asks that an

appeal not be taken,” we then ask “whether counsel in fact consulted with the

defendant about an appeal.” Id. at 478. “Consult” has a “specific

meaning—advising the defendant about the advantages and disadvantages of

taking an appeal, and making a reasonable effort to discover the defendant’s

wishes.” Id. If counsel has consulted with the defendant, his performance is only

deficient if he fails to “follow the defendant’s express instructions with respect to

an appeal.” Id.

      Finally, if counsel has not consulted with the defendant, the question is

whether failure to consult is itself deficient performance. Id. Not every failure to

consult is constitutionally deficient. Id. at 479. Rather, the duty to consult exists

only “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)




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that this particular defendant reasonably demonstrated to counsel that he was

interested in appealing.” Id. at 480.

      The district court convened an evidentiary hearing and took testimony from

Henson and her lawyer. It also relied on three letters exchanged between Henson

and counsel after Henson’s sentencing date of April 29, 2013 and before the

deadline for filing a notice of appeal, May 16, 2013. 1

      At the hearing, Henson testified she was not advised as to the pros and cons

of an appeal, and that she wished to appeal. She believed her first letter to

counsel, received on May 2, 2013, instructed him to do so. In contrast, her

counsel testified that he spoke to Henson in person on the day of sentencing. He

recalled telling her at some point that even if she won an appeal, she would have

the same sentencing judge on remand.

      As to the letters, in the May 2, 2013 letter Henson said she was upset about

her above-Guidelines sentence, particularly because her co-defendants received

less time. But she did not mention the possibility of appealing. Her counsel then

responded with a letter dated May 3, 2013, explaining that the sentence could

have been ten years instead of five because the judge found Henson’s conduct

considerably more egregious than that of her co-defendants. Finally, in a letter

received by counsel on May 7, 2013, Henson acknowledged that she was lucky



      1
          Judgment was entered on May 2, 2013.

                                         -4-
the sentence was not worse, that she felt remorse for her victims, and that she was

sorry for her previous letter. Once again, there was no mention of appeal.

      The district court found that Henson had never instructed counsel to file an

appeal. The court also noted that the contents of the letters established “that the

defendant’s attitude toward the matter had progressed from anger to acceptance,”

R. Vol. 1, at 187, and that counsel had gleaned from the letters “an unmistakable

sense of acceptance and finality,” id. at 189. Counsel had reasonably believed

she had no interest in appealing because she knew she would see the same judge

on remand and would not likely receive a more favorable sentence.

      Even if these exchanges do not show Henson explicitly instructed counsel

not to appeal, we agree with the district court that counsel adequately consulted

with her. As discussed above, counsel explained to Henson that an appeal would

likely be unsuccessful or futile because she would have the same judge on

remand. Coupled with counsel’s observation in his letters that Henson was lucky

to get only five years instead of ten, we find this a sufficient discussion of the

advantages and disadvantages of taking an appeal. And Henson’s ultimate

acceptance of her fate satisfied any duty counsel may have had to reasonably

ascertain her wishes. Because counsel adequately consulted with Henson and did

not disregard any express instructions on her part, his performance was not

deficient. Flores-Ortega, 528 U.S. at 478.




                                          -5-
                             III. Conclusion

     For the foregoing reasons, we AFFIRM the district court’s denial of

Henson’s § 2255 motion.

                                            ENTERED FOR THE COURT

                                            Timothy M. Tymkovich
                                            Chief Judge




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