    13-455
    Davis v. United States


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    17th day of March, two thousand fourteen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                JOSÉ A. CABRANES,
                      Circuit Judge,
                RICHARD M. BERMAN,*
                      District Judge.
    _______________________________________

    TROY DAVIS,

                              Petitioner-Appellant,
                     v.                                                     No. 13-455

    UNITED STATES OF AMERICA,

                              Respondent-Appellee.

    _______________________________________

    For Petitioner-Appellant:                         Troy Davis, pro se, Folkston, GA.

    For Respondent-Appellee:                          Michael A. Levy, Rebecca G. Mermelstein, and
                                                      Diane Gujarati, Assistant United States Attorneys,


            *
              The Honorable Richard M. Berman, of the United States District Court for the Southern
    District of New York, sitting by designation.
                                              for Preet Bharara, United States Attorney for the
                                              Southern District of New York, New York, NY.


       Appeal from an order of the United States District Court for the Southern District of New
York (Eginton, J., of the District of Connecticut, sitting by designation).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, and

DECREED that the order of the district court is AFFIRMED.

       Appellant Troy Davis, proceeding pro se, appeals the district court’s January 4, 2013

order denying his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.

§ 2255. The district court granted Davis a certificate of appealability. We assume the parties’

familiarity with the underlying facts, procedural history of the case, and issues on appeal.

       In reviewing a district court’s denial of relief under § 2255, we review findings of fact for

clear error and conclusions of law de novo. See Scanio v. United States, 37 F.3d 858, 859 (2d

Cir. 1994). We review a district court’s denial of an evidentiary hearing under 28 U.S.C.

§ 2255(b) for abuse of discretion See Chang v. United States, 250 F.3d 79, 82 (2d Cir. 2001);

see also Puglisi v. United States, 586 F.3d 209, 215 (2d Cir. 2009) (“[W]here the judge who tried

the case holds a limited hearing to decide a generic claim, the determination of whether the

hearing was sufficient is reviewed for abuse of discretion.”).

       To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate

(1) that counsel’s representation fell below an objective standard of reasonableness and (2) that

there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would

have been different. See Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). In Roe v.

Flores-Ortega, the Supreme Court rejected a per se rule that counsel must, in all cases, either file

a notice of appeal or discuss with his client the possibility of an appeal and ascertain his wishes.

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528 U.S. 470, 478 (2000). Rather, the Court held that the first question should be whether

counsel consulted with the defendant about an appeal, that is, whether he advised the defendant

about the advantages and disadvantages of an appeal and made a reasonable effort to discover

the defendant’s wishes. Id. Where, as is undisputed here, counsel did consult with the defendant,

counsel will be found to have performed unreasonably only in failing to follow the defendant’s

express instructions to file an appeal. Id.

       When a defendant claims that his attorney failed to file a requested notice of appeal, he is

entitled to “a hearing before the district court pursuant to § 2255 to determine whether [he]

requested the appeal.” Campusano v. United States, 442 F.3d 770, 776 (2d Cir. 2006). A district

court need not necessarily conduct a “full-blown testimonial hearing,” as it is “within the district

court’s discretion to choose a middle road” that adequately expands the record without “the

needless expenditure of judicial resources.” Chang, 250 F.3d at 86 (holding that even if the

affidavits of petitioner and defense counsel are contradictory, a district court need not conduct a

hearing where live testimony would not alter its view of the facts); see also Puglisi, 586 F.3d at

215 (noting that the trial judge is in the best position to determine the scope of the hearing

because that judge is “intimately familiar” with the underlying criminal proceedings).

       After an independent review of the record and relevant case law, we conclude that the

district court acted within its discretion in declining to hold a full hearing on Davis’s § 2255

motion. In light of the detailed affidavit of defense counsel and the corroborating letter, there

was a sufficient evidentiary record to permit the district court to reject Davis’s claim that he

timely instructed defense counsel to file a notice of appeal. See Puglisi, 586 F.3d at 215; Chang,

250 F.3d at 85–86. We see no basis to disturb the district court’s conclusion that live testimony

would not have altered its view of the facts.

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       We have considered all of Davis’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the order of the district court.

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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