            Case: 12-15784   Date Filed: 08/18/2014   Page: 1 of 9


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15784
                         Non-Argument Calendar
                       ________________________

  D.C. Docket Nos. 4:11-cv-00044-WTM-GRS; 4:09-cr-000147-WTM-GRS-1



TYRONE SAMUEL FIELDS,

                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                             (August 18, 2014)

Before TJOFLAT, JORDAN, and FAY, Circuit Judges.

PER CURIAM:
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      Tyrone Fields appeals the district judge’s denial of his pro se habeas petition

under 28 U.S.C. § 2255. We affirm.

                                I. BACKGROUND

      In November 2008, Fields was indicted as one of forty-five defendants in a

large cocaine conspiracy. He was charged with conspiracy to possess with intent

to distribute, possession with intent to distribute, possession of a firearm by a

convicted felon, possession of a firearm in furtherance of a drug-trafficking crime,

and use of a telephone to facilitate the conspiracy. Fields pled guilty to a lesser-

included drug-conspiracy charge, possession with intent to distribute cocaine in

violation of 21 U.S.C. § 846, and was sentenced to 135 months of imprisonment.

Following his guilty plea, Fields violated the conditions of his pretrial release by

participating in a second cocaine conspiracy.

      Fields was indicted for his participation in the second conspiracy in June

2009 and also was charged with distribution of cocaine base in August 2009. In

October 2009, Fields pled guilty to conspiracy to possess with intent to distribute a

controlled substance, in violation of 21 U.S.C. §§ 841 and 846. Because of his

first conviction for participation in a cocaine conspiracy, Fields qualified as a

career offender at the time of his sentencing. The sentencing judge imposed a 262-

month imprisonment sentence to run concurrently with his 135-month sentence.

Fields did not appeal.


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         In February 2011, Fields filed a pro se petition under 28 U.S.C. § 2255. He

argued his defense counsel had been ineffective for failing to file a direct appeal

after being requested to do so. The government opposed and asserted Fields had

never asked his defense counsel, Greg Crawford, to file an appeal.

         A magistrate judge scheduled an evidentiary hearing and appointed counsel

to represent Fields during the hearing. Fields, several of his family members, and

Crawford testified. Fields and his family maintained he had requested Crawford to

file an appeal immediately after the sentencing hearing. Crawford, however,

testified neither Fields nor his family had ever made such a request. Even if the

judge found he had not asked Crawford to file an appeal, Fields argued Crawford

had a duty to consult with him regarding an appeal and had rendered ineffective

assistance by failing to consult. The magistrate judge agreed to consider that claim

and concluded the failure-to-consult claim related back to the initial failure-to-file

claim.

         The magistrate judge’s Report and Recommendation (“R&R”)

recommended denying Fields’s § 2255 petition. First, the magistrate judge found

Crawford was the more believable witness during the evidentiary hearing and

specifically adopted Crawford’s version of events. Because Crawford had

informed Fields of his career-offender classification during their initial post-arrest

meeting, the magistrate judge determined Fields knew he qualified as a career


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offender and faced a much more severe than he had received in his first cocaine

conspiracy within days of his arrest. The magistrate judge also found Fields’s

primary concern was the possibility that any sentence he received would be made

consecutive to the sentence he had received in the earlier drug case.

      The magistrate judge concluded Fields knew the probable sentencing range

he was facing, elected to plead guilty anyway, received a sentence at the bottom of

the Sentencing Guidelines range, and obtained the outcome he had sought—a

concurrent rather than a consecutive sentence. The magistrate judge also found

that, after Fields’s sentencing, Crawford had informed his family there were no

meritorious grounds to appeal, because the sentencing judge had imposed a

sentence within the Guidelines range. The magistrate judge further determined

neither Fields nor any member of his family had ever requested Crawford to file a

direct appeal.

         Accordingly, the magistrate judge concluded Fields’s failure-to-file claim

lacked merit. Because Fields had not expressed any interest in appealing the

sentence he expected to receive, and Crawford could not think of nonfrivolous

grounds to appeal, the magistrate judge determined Crawford had no duty to

consult with Fields concerning an appeal. Even if Crawford had a duty to consult,

Fields had not demonstrated prejudice.




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      The district judge adopted the R&R and dismissed Fields’s § 2255 petition.

The judge declined to grant a certificate of appealability (“COA”). On appeal, we

granted a COA on the following issue:

      Whether, under the totality of the circumstances, Mr. Fields
      established that: (1) trial counsel owed him a duty to consult because a
      rational defendant would have wanted to appeal his sentence, and
      (2) there is a reasonable probability that, but for counsel’s failure to
      consult, he would have timely appealed.

Fields v. United States, No. 12-15784 (11th Cir. June 5, 2013).

                                II. DISCUSSION

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

novo and his factual findings for clear error. Devine v. United States, 520 F.3d

1286, 1287 (11th Cir. 2008). Whether counsel was ineffective is a mixed question

of fact and law we review de novo. Id. “We allot substantial deference to the

factfinder in reaching credibility determinations with respect to witness

testimony.” Id. (citation, internal quotation marks, and alteration omitted). The

scope of review is limited to the issues specified in the COA. Murray v. United

States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).

      To prevail on an ineffective-assistance-of-counsel claim, Fields must

establish (1) his counsel’s performance was deficient, and (2) he suffered prejudice

as a result of that deficient performance. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064 (1984). The Strickland test also applies to claims of


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ineffective assistance based on counsel’s failure to file an appeal. Roe v. Flores-

Ortega, 528 U.S. 470, 476-77, 120 S. Ct. 1029, 1034 (2000). When counsel

disregards specific instructions from a convicted defendant to file a notice of

appeal, counsel acts in a manner that is professionally unreasonable. Id. at 477,

120 S. Ct. at 1035. In the absence of specific instructions, an attorney nonetheless

has a constitutional duty to consult with his client about an appeal, when (1) a

rational convicted defendant would want to appeal, or (2) the convicted defendant

reasonably demonstrated to counsel an interest in appealing. Id. at 480, 120 S. Ct.

at 1036.

      In the “vast majority of cases,” the Supreme Court expects courts will find

“that counsel had a duty to consult with the defendant about an appeal.” Id. at 481,

120 S. Ct. at 1037. Factors we consider in determining whether a rational

defendant would want to appeal include whether the conviction follows a guilty

plea, whether the defendant received the sentence bargained for as part of a plea

agreement, whether the plea agreement waived appellate rights, and whether there

are nonfrivolous grounds for appeal. Id. at 480, 120 S. Ct. at 1036; Otero v. United

States, 499 F.3d 1267, 1270 (11th Cir. 2007). A guilty plea both “reduces the

scope of potentially appealable issues” and indicates “the defendant seeks an end

to judicial proceedings.” Flores-Ortega, 528 U.S. at 480, 120 S. Ct. at 1036.




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        If counsel performed deficiently, the petitioner must demonstrate prejudice

by showing there was a reasonable probability that, “but for counsel’s deficient

failure to consult with him about an appeal, he would have timely appealed.” Id. at

484, 120 S. Ct. at 1038. “[E]vidence that there were nonfrivolous grounds for

appeal or that the defendant in question promptly expressed a desire to appeal will

often be highly relevant in making this determination.” Id. at 485, 120 S. Ct. at

1039.

        Because we “allot substantial deference to the factfinder in reaching

credibility determinations with respect to witness testimony,” the district judge did

not clearly err in adopting Crawford’s version of the events as more credible.

Devine, 520 F.3d at 1287 (citation, internal quotation marks, and alteration

omitted). Applying the district judge’s credibility findings, Fields knew he

qualified as a career offender, when he met with Crawford after his arrest, and he

also knew he would receive a substantially more severe sentence than he had

received in his previous case. Fields’s pleading guilty showed he was “seek[ing]

an end to judicial proceedings.” Flores-Ortega, 528 U.S. at 480, 120 S. Ct. at

1036. Moreover, Fields received the sentence for which he had bargained. His

primary concern was whether his sentence would run concurrently or

consecutively to his prior sentence; the district judge ordered his sentence to run




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concurrently. Furthermore, the district judge sentenced Fields at the bottom of the

applicable Guidelines range.

       Although Fields’s plea agreement does not contain an appeal waiver, this

factor weighs only slightly in Fields’s favor, because no evidence shows Fields

bargained to retain any appeal rights. While there may have been nonfrivolous

issues Fields could have raised on appeal, no rational convicted defendant would

have wanted to appeal in these circumstances, because of the guilty plea and

Fields having received the sentence he had sought. Therefore, the district judge

did not err in finding Crawford had no duty to consult. 1

       Even if Fields could demonstrate Crawford had a duty to consult, he has

failed to demonstrate “there is a reasonable probability that, but for [Crawford’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. Fields does not

identify which claims he would have raised on appeal. Although in other portions

of his brief Fields asserts he could have appealed the amount of drugs attributed to


1
  Fields also argues Crawford knew or should have known he wanted to appeal, and he
had a duty to consult under the second prong of the Flores-Ortega test, which concerns
whether the convicted defendant reasonably had expressed to counsel an interest in
appealing. Flores-Ortega, 528 U.S. at 480, 120 S. Ct. at 1036. The second prong of the
Flores-Ortega test is outside the scope of this appeal, because our COA asks only
whether a rational convicted defendant would have wanted to appeal in this case and
whether Fields was prejudiced by Crawford’s failure to consult. Fields v. United States,
No. 12-15784 (11th Cir. June 5, 2013). Consequently, we need not address this
argument. Murray, 145 F.3d at 1250-51.

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him in this case and the disparity in his sentence compared with his codefendants,

he would not have appealed those issues had Crawford consulted with him.

Crawford informed Fields’s family after sentencing he believed there were no

issues for appeal, and he would have communicated that belief to Fields in any

consultation. Crawford testified during the evidentiary hearing that he had

informed Fields before sentencing that challenging the drug amounts would be

pointless, because, even if they had succeeded, Fields’s Guidelines range as a

career offender would not change. “Disparity between the sentences imposed on

codefendants is generally not an appropriate basis for relief on appeal.” United

States v. Regueiro, 240 F.3d 1321, 1325-26 (11th Cir. 2001). Accordingly, we

affirm the district judge’s denial of Fields’s § 2255 petition.

      AFFIRMED.




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