                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-2878
JOHN E. BEDNARSKI,
                                            Petitioner-Appellant,
                               v.

UNITED STATES OF AMERICA,
                                            Respondent-Appellee.
                        ____________
           Appeal from the United States District Court
              for the Western District of Wisconsin.
           No. 06 C 152—Barbara B. Crabb, Chief Judge.
                        ____________
     ARGUED JANUARY 5, 2007—DECIDED MARCH 23, 2007
                        ____________


 Before FLAUM, MANION, and SYKES, Circuit Judges.
  MANION, Circuit Judge. John E. Bednarski pleaded guilty
to distributing and receiving child pornography via the
Internet and was sentenced to seventy months’ imprison-
ment. Bednarski did not appeal his sentence, but nearly
one year later he filed a petition for habeas corpus relief
seeking to vacate his sentence based on his trial counsel’s
alleged ineffective assistance for failing to advise him of
the pros and cons of taking an appeal. The district court
denied Bednarski’s petition. Bednarski appeals, and we
affirm.
2                                             No. 06-2878

                            I.
  Throughout 2003, Federal Bureau of Investigation (“FBI”)
agents tracked the Yahoo! ID of a user who posted in
various Yahoo! Groups (Internet chatrooms) multiple
pictures of pre-pubescent girls and boys engaged in
sexually explicit acts. Through the use of administrative
subpoenas, the FBI agents identified John E. Bednarski as
the individual associated with the Yahoo! ID. In February
2004, FBI agents executed a search warrant for Bednarski’s
residence, during which they seized his home computer
and related equipment. During the FBI agents’ execution
of the search warrant, Bednarski admitted using his
computer to post and download images of child pornogra-
phy from Yahoo! Groups. The FBI later completed a
forensic examination of Bednarski’s computer hard drive,
and found 405 files containing child pornography.
  In November 2004, the government filed a one-count
information against Bednarski in the Western District of
Wisconsin, alleging that he knowingly possessed a com-
puter hard drive containing multiple depictions of minors
engaged in sexually explicit conduct in violation of 18
U.S.C. § 2252(a)(4)(b). One month later, the information
was amended to include a forfeiture count for Bednarski’s
computer equipment pursuant to 18 U.S.C. § 2253.
Bednarski hired attorney Jared Redfield to represent him.
  With attorney Redfield’s assistance, Bednarski reached
a written plea agreement with the government, which
was memorialized in a letter dated December 22, 2004.
Bednarski agreed to waive indictment and to enter an
unconditional guilty plea on both counts in the amended
information. In exchange for his guilty plea, the govern-
ment recommended that Bednarski receive a sentence
No. 06-2878                                                 3

reduction for acceptance of responsibility and his timely
notice of his intent to plead guilty.
  On January 11, 2005, Bednarski appeared before the
district court and entered his guilty plea. During the course
of the plea hearing, Bednarski admitted, inter alia, that: (1)
no one promised him that he was going to receive a specific
sentence; (2) he could be sentenced to up to ten years’
imprisonment upon conviction; and (3) his sentence
would be based on the United States Sentencing Guidelines
(the “Guidelines”). Bednarski further agreed that the
Guidelines would be applicable in their entirety. Follow-
ing the plea hearing, Bednarski was released until his
sentencing hearing, provided that he complied with
specified conditions, including neither using a computer
nor possessing sexually explicit materials.
  On March 25, 2005, Bednarski appeared before the
district court for sentencing. Bednarski’s presentence report
(“PSR”) recommended a Guideline sentence range of
seventy to eighty-seven months’ imprisonment. The PSR’s
Guideline calculation included a three-point reduction for
Bednarski’s acceptance of responsibility and his timely
notice of his guilty plea. During the hearing, Bednarski
stated that he had read the PSR and had no objections to
anything in the report. Bednarski’s attorney stated that
while Bednarski was prepared to accept the district court’s
sentence, he requested that the district court depart from
the Guidelines and sentence Bednarski to probation, which
would allow him to continue to serve as the primary care
provider for his ailing wife.1 The district court denied
Bednarski’s request and sentenced him to seventy months’


1
  Bednarski stated that both his wife and his daughter are
afflicted with multiple sclerosis, and he was his wife’s pri-
mary care-giver prior to his incarceration.
4                                               No. 06-2878

imprisonment followed by a three-year term of supervised
release. The district court then informed Bednarski that he
had the right to appeal his sentence if he believed it was
illegal in any respect, and that his then-attorney, Redfield,
was obligated to continue to represent him unless he was
relieved of that obligation by the court. At the conclusion
of the sentencing hearing, the district court found that
Bednarski was neither a flight risk nor a danger to the
community and stayed the execution of his sentence of
imprisonment until April 14, 2005. Bednarski did not file a
notice to appeal or pursue an appeal of his sentence.
  Two days short of the one-year anniversary of his
sentencing, Bednarski filed a petition for habeas relief
pursuant to 28 U.S.C. § 2255, seeking to vacate his sen-
tence based on ineffective assistance of counsel. Specifi-
cally, Bednarski alleged that attorney Redfield failed to
consult with him regarding the merits of appealing his
sentence. Bednarski admits, however, that he never
actually asked attorney Redfield to file an appeal or even a
notice of appeal on his behalf.
  On June 8, 2006, the district court held an evidentiary
hearing. Bednarski testified that immediately after he
received his sentence, he turned to attorney Redfield and
said, “I think we got blindsided.” He testified that he made
that statement based on his conversations with attorney
Redfield, during which attorney Redfield allegedly re-
layed a conversation with an FBI agent who told attorney
Redfield that he “didn’t think anything was going to
come of this.” Bednarski also testified regarding conversa-
tions he allegedly had with attorney Redfield following
the sentencing hearing during their trip from Madison
No. 06-2878                                                5

back to Stevens Point.2 He stated that during the return
trip, he asked attorney Redfield: “Do you think we should
appeal the sentence?” According to Bednarski, attorney
Redfield surprisedly responded: “You want to appeal?”
Bednarski testified that he responded: “Don’t you think
we should?” He claims that attorney Redfield never
provided him with an answer to that question, nor did he
address the advantages and disadvantages of filing an
appeal. Instead, Bednarski testified that once he and
attorney Redfield arrived back at attorney Redfield’s office,
attorney Redfield merely wished him luck and sent him on
his way. Bednarski testified that he could not recall
whether he spoke with attorney Redfield over the next ten
days, i.e., the time in which Bednarski had to file his
notice of appeal. Finally, on cross-examination, Bednarski
stated that he could not recall whether attorney Redfield
and he had discussed filing an appeal prior to entering
his guilty plea.
  At that same evidentiary hearing, attorney Redfield
testified that he had been an attorney for forty years,
practicing in bankruptcy, divorce, and criminal defense.
Attorney Redfield further testified that he was aware of
the appeals process and would have filed a notice of
appeal upon Bednarski’s request, as he had done in a
separate criminal trial he handled for another client a few
months earlier. He also testified that after Bednarski and
he discussed the overwhelming and irrefutable evidence
of Bednarski’s guilt, they decided that the best option was
for Bednarski to plead guilty, begin treatment with a


2
  Bednarski testified that because he was unfamiliar with the
Madison area, attorney Redfield drove him from Stevens
Point to Madison for the plea and sentencing hearings.
6                                              No. 06-2878

psychiatrist, express complete remorse, and hope that the
district court considered Bednarski’s caretaking for his
wife to be a mitigating factor when determining his
sentence. Attorney Redfield stated that, prior to Bednarski
entering his guilty plea, Bednarski and he discussed the
effect a guilty plea would have on Bednarski’s appeal
prospects. He testified that he explained to Bednarski that
complete cooperation with the government would fore-
close most appealable issues and that Bednarski was
“virtually giving up any right to appeal by going right to
the plea and sentencing.”
  Attorney Redfield also provided a starkly different
recollection of his conversations with Bednarski during
their trips to and from Madison. He stated that on the
way to Bednarski’s plea hearing, he specifically ex-
plained to Bednarski that a plea of guilty would severely
limit his appeal options and that Bednarski should be
prepared to accept the district court’s sentence, which
“very, very, very likely . . . would be prison.” Attorney
Redfield further testified that during their drive together
to the sentencing hearing, Bednarski was quite aware of
what the government was offering and that attorney
Redfield planned to argue that Bednarski’s prison time
should be reduced in favor of probation so that Bednarski
could continue to care for his wife. Attorney Redfield
stated that he told Bednarski that if he wanted to appeal,
then he would file the notice of appeal, but he would not
handle the actual appeal because he did not take appellate
cases. Following the sentencing hearing, attorney Redfield
recalled that Bednarski was surprised by the harshness of
the sentence, but he was taken aback at Bednarski’s
reaction because Bednarski was sentenced at the bottom of
the applicable Guideline imprisonment range. Finally,
attorney Redfield testified that during the drive back to
No. 06-2878                                                  7

Stevens Point, he did not recall discussing whether to
appeal, but he definitively stated that Bednarski “certainly
didn’t ask me to appeal.”
  After hearing Bednarski’s and attorney Redfield’s
testimony, the district court informed the parties that it
would deny Bednarski’s petition. Four days later, the
district court entered its written order. In that order, the
district court stated:
    I find as fact that Redfield gave [Bednarski] advice
    about filing an appeal, starting in the early stages of the
    case, and made it clear to [Bednarski] that if he fol-
    lowed the recommended course of cooperation and
    contrition he would have few if any chances of taking
    a successful appeal. I do not find [Bednarski] credible
    when he says now that on the way back to Stevens
    Point he asked Redfield about appealing and Redfield
    ignored his questions. [Bednarski] has a strong motiva-
    tion to remember the conversation incorrectly, whereas
    it is hard to imagine any reason Redfield would have
    had for not responding to [Bednarski’s] questions. At
    the least, Redfield would have reminded [Bednarski]
    about the compromises he had made in his effort to
    obtain the lowest possible sentence. And if [Bednarski]
    was not persuaded that he had no chance of succeed-
    ing on appeal, what reason would Redfield have had
    to ignore [Bednarski’s] desire to appeal? Filing a notice
    of appeal is a simple procedure.
United States v. Bednarski, No. 06-R-0196-C-01, slip op. at 5
(W.D. Wis. June 12, 2006). The district court also concluded
that even if Bednarski were correct that attorney Redfield
ignored his questions regarding an appeal, attorney
Redfield provided Bednarski with advice throughout his
representation “sufficient to fulfill his obligations to his
8                                                No. 06-2878

client under Flores-Ortega.” Id. (citing Roe v. Flores-Ortega,
528 U.S. 470 (2000)). The district court further stated that
“[g]iven the previous discussion the two had had, it was
reasonable for Redfield to conclude from [Bednarski’s]
failure to ask expressly about taking an appeal that al-
though [Bednarski] was disappointed about his sentence,
he understood that an appeal would be futile.” Id. Accord-
ingly, the district court denied Bednarski’s § 2255 peti-
tion. Bednarski appeals.


                             II.
  Bednarski argues on appeal that the district court erred
in denying his habeas petition, claiming that attorney
Redfield’s failure to apprise him of the advantages and
disadvantages of appealing his sentence constituted
ineffective assistance of counsel. “On appeal from a denial
of habeas corpus relief, we review issues of law de novo
and issues of fact for clear error.” Adams v. Bertrand, 453
F.3d 428, 432 (7th Cir. 2006) (citations omitted). The sole
basis upon which Bednarski argues for habeas relief is that
he received ineffective assistance of counsel, which “is a
mixed question of law and fact reviewed de novo, with a
strong presumption that his attorney performed effec-
tively.” United States v. Fudge, 325 F.3d 910, 923 (7th Cir.
2003).
  The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. “It has long been recognized that the right to
counsel is the right to the effective assistance of counsel.”
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). In
Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
No. 06-2878                                                      9

Court set forth its now familiar two-part test for determin-
ing ineffective assistance of counsel claims, holding a
defendant must demonstrate that the representation: (1)
“fell below an objective standard of reasonableness,” id. at
688; and (2) prejudiced the defendant, id. at 694.
  In this case, Bednarski claims that while he never in-
structed attorney Redfield to file a notice of appeal or an
appeal on his behalf, attorney Redfield nonetheless pro-
vided ineffective assistance of counsel by failing to con-
sult with him regarding the advantages and disadvan-
tages of appealing his sentence. Our determination of this
case is controlled by Roe v. Flores-Ortega, 528 U.S. 470
(2000), in which the Supreme Court applied the Strickland
test to a claim that counsel was constitutionally ineffective
for failing to file a notice of appeal. Id. at 476-77. In Flores-
Ortega, the Court stated that in cases such as this one
where the defendant does not instruct his counsel to file
an appeal or notice of appeal, the ineffective assistance of
counsel inquiry begins with a determination of whether
counsel consulted with the defendant about the possibil-
ity of appeal.3 Flores-Ortega, 528 U.S. at 478. The Court
defined “consult” as “advising the defendant about the



3
   The Flores-Ortega Court also held that an attorney who
disregards his client’s specific instruction to file a notice of
appeal acts in a manner that is professionally unreasonable,
id. at 477, and that where counsel’s error leads to “the forfeiture
of a proceeding itself,” prejudice will be presumed, id. at 483-84.
Accordingly, “ ‘[w]hen counsel fails to file a requested appeal, a
defendant is entitled to a new appeal without showing that
his appeal would likely have had merit.’ ” Id. at 477 (quoting
Peguero v. United States, 526 U.S. 23, 28 (1999) (internal brackets
omitted)).
10                                                 No. 06-2878

advantages and disadvantages of taking an appeal, and
making a reasonable effort to discover the defendant’s
wishes.” Flores-Ortega, 528 U.S. at 478. “If counsel has
consulted with the defendant, the question of deficient
performance is easily answered: Counsel performs in a
professionally unreasonable manner only by failing to
follow the defendant’s express instructions with respect
to an appeal.” Id.
  Having heard both Bednarski’s and attorney Redfield’s
testimony during the evidentiary hearing, the district
court found that Bednarski’s self-serving testimony was not
credible regarding his alleged conversations with attorney
Redfield on their drive back from the sentencing hearing.
Instead, the district court found attorney Redfield credible
when he testified that he had consulted with Bednarski
throughout his representation regarding the impact a guilty
plea would have on Bednarski’s ability to appeal his
sentence. The district court’s findings of fact are supported
by the record, and Bednarski has presented no basis for us
to conclude that those findings were clearly erroneous.
Accordingly, we affirm the district court’s holding that “the
advice Redfield provided his client throughout his repre-
sentation was sufficient to fulfill his obligations to his client
under Flores-Ortega.” Bednarski, No. 06-R-0196-C-01, slip op.
at 5.
  Because the recollections of the conversation on the
return trip from the sentencing hearing are vague, it is
worth noting that even if the district court had con-
cluded that attorney Redfield had not properly consulted
with Bednarski regarding an appeal, Bednarski’s petition
would have failed nonetheless under Flores-Ortega. In
Flores-Ortega, the Court stated that to satisfy the first prong
of the Strickland test, namely that counsel’s performance
No. 06-2878                                               11

was deficient, the defendant must show that his counsel’s
failure to consult resulted in a deficient performance
because either:
    (1) 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 479-80. A showing of either of these factors would
prove deficiency and thus satisfy the first Strickland prong.
Id. at 479-80. The Flores-Ortega Court noted that “[a]lthough
not determinative, a highly relevant factor in this inquiry
will be whether the conviction follows a trial or a guilty
plea.” Id. The Court explained that a guilty plea is sig-
nificant to the deficiency analysis “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 proceedings.” Id. The Court
cautioned, however, that in cases where the defendant
entered a guilty plea, the district court must still consider
other factors, such as “whether the defendant received
the sentence bargained for as part of the plea.” Id.
  Here, as the district court correctly concluded, there is
nothing in the record to indicate that a rational defendant
in Bednarski’s position would want to appeal his sentence.
Bednarski was fully apprised of the sentence range he
faced prior to entering his guilty plea, and he raised no
objections to the PSR. While it appears that Bednarski
hoped to receive a sentence of probation, both the PSR
and the district court clearly informed Bednarski that he
was facing serious prison time. The district court also
sentenced Bednarski to the bottom of the advisory Guide-
line imprisonment range for his crimes. Further, Bednarski
12                                               No. 06-2878

was repeatedly advised that by pleading guilty, his only
basis for appeal would be to challenge the legality of his
sentence. Based on this overwhelming evidence, we
conclude that a rational defendant in Bednarski’s posi-
tion would not choose to appeal his sentence.
  There also is no evidence in the record to indicate that
Bednarski reasonably demonstrated to attorney Redfield
that he was interested in appealing. Although Bednarski
testified that he questioned attorney Redfield about
appealing during the drive from the courthouse to Stevens
Point following the sentencing hearing, the district
court found Bednarski’s testimony not credible on that
point, and there is no reason to disrupt that finding.
Accordingly, Bednarski did not satisfy the first prong of
the Strickland test.
   Finally, even if we found that Bednarski had satisfied the
first prong of the Strickland test, his petition still would
fail because he did not satisfy the second prong of the
Strickland test. In Flores-Ortega, the Court stated that to
satisfy the second prong of the Strickland test, namely
prejudice from counsel’s deficient performance, “a defen-
dant must demonstrate that there is a reasonable prob-
ability that, but for counsel’s deficient failure to consult
with him about an appeal, he would have timely ap-
pealed.” Id. at 484. While this determination “will turn on
the facts of a particular case,” “evidence that there were
nonfrivolous grounds for an appeal or that the defendant
in question promptly expressed a desire to appeal will
often be highly relevant.” Id. at 485. Although nonfrivolous
grounds may support a defendant’s claim, it “is unfair to
require a . . . defendant to demonstrate that his hypothetical
appeal might have merit.” Id. at 486 (emphasis in original).
A defendant’s inability to demonstrate potential merit “will
No. 06-2878                                               13

not foreclose the possibility that he can satisfy the prej-
udice requirement where there are other substantial reasons
to believe that he would have appealed.” Id. (emphasis
added).
   In this case, Bednarski did not proffer any nonfrivolous
grounds upon which he would base an appeal of his
sentence if provided with the opportunity to do so. While
stating such grounds is not required, Bednarski also failed
to show any substantial reasons to believe that he would
have appealed. Other than expressing his desire to be
sentenced to probation—a sentence that was not even
mentioned in the PSR to which Bednarski did not ob-
ject—he presented no other reason to lead us to con-
clude that he would have filed a timely appeal but for
attorney Redfield’s alleged failure to consult with him.
Further, there is no evidence in the record that Bednarski
promptly expressed a desire to appeal; rather, there is
evidence to the contrary. Bednarski made no attempt to
contact attorney Redfield regarding his alleged desire to
file an appeal after they returned from the sentencing
hearing, and Bednarski waited two days short of an
entire year to file this habeas petition. Accordingly, we
find that Bednarski did not satisfy either prong of the
Strickland test.


                            III.
  The district court did not err when it denied Bednarski’s
petition for habeas corpus. The district court’s finding that
Bednarski’s counsel consulted with him regarding the
advantages and disadvantages of appealing his sentence is
not clearly erroneous. The district court also did not err
in concluding that Bednarski’s counsel provided con-
14                                             No. 06-2878

stitutionally effective assistance of counsel. The district
court’s denial of Bednarski’s petition for habeas relief
is therefore AFFIRMED.

A true Copy:
       Teste:

                         _____________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                   USCA-02-C-0072—3-23-07
