                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                      FILED
                                                              U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                                No. 08-15474                        MAY 11, 2010
                          ________________________                   JOHN LEY
                                                                      CLERK
                  D. C. Docket No. 07-00497-CV-3-LAC-MD

NICHOLAS CUNNINGHAM,

                                                      Petitioner-Appellant,

                                        versus

UNITED STATES OF AMERICA,

                                                      Respondent-Appellee.

                          ________________________

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

                                   (May 11, 2010)


Before TJOFLAT, WILSON and EBEL, * Circuit Judges.

PER CURIAM:


      *
         Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit,
sitting by designation.
     In this appeal from the denial of a § 2255 motion, Petitioner

Nicholas Cunningham claims that his trial counsel afforded him

ineffective assistance of counsel when he failed to file an appeal on behalf

of Petitioner after Petitioner explicitly instructed him to do so. The

district court denied Petitioner’s claim on the ground that he did not

establish that his counsel acted unreasonably by relying upon a subsequent

statement by Petitioner’s mother that he no longer wanted to appeal. We

conclude that the factual disputes at issue here would best be resolved by

an evidentiary hearing, and thus VACATE and REMAND for the district

court to conduct such a hearing.

I.    Background

     On November 14, 2006, Petitioner Nicholas Cunningham was

sentenced to a 240-month sentence following his guilty plea to a charge of

conspiracy to distribute 50 grams or more of crack cocaine, in violation of

21 U.S.C. §§ 841, 846. Petitioner informed his court-appointed attorney

at the sentencing hearing that he did not wish to appeal his sentence so he

could leave open the possibility of later receiving a reduction for

providing substantial assistance to the government pursuant to Federal

Rule of Criminal Procedure 35.

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      On or about November 18, 2006, Petitioner’s counsel received a

phone call from a woman identifying herself as Petitioner’s sister, who

informed counsel that she had spoken with her brother and he now wanted

to file an appeal. This conflicted with what Petitioner had represented to

him at the sentencing hearing, so counsel visited Petitioner in jail on

November 20; Petitioner told him he now wanted to appeal. The

following day, a woman identifying herself as Petitioner’s mother spoke

by phone to the secretary of Petitioner’s attorney and informed her that

Petitioner did not want to appeal. After receiving this message,

Petitioner’s attorney did not return to the jail to talk to Petitioner and did

not file a notice of appeal.

      Petitioner subsequently filed this § 2255 motion alleging, among

other things, that counsel was ineffective for failing to file a timely notice

of appeal as he had explicitly requested. The magistrate judge noted that

Petitioner did not state whether he in fact authorized his mother to call his

attorney to withdraw his request for an appeal, and so instructed Petitioner

to either withdraw the claim or to provide a sworn affidavit “setting forth

his version of the facts surrounding his mother’s instructions to counsel

with respect to the notice of appeal.” (R. doc. no. 58.) Petitioner

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submitted an affidavit that stated he did not recall whether he told his

mother to tell his attorney he no longer wanted to appeal, but that he did

recall telling his attorney at the jail that he did want to appeal. The

magistrate judge concluded in his report and recommendation that

Petitioner failed to establish that his counsel was ineffective for failing to

file a notice of appeal because he did not establish that his mother’s phone

call was against his wishes. The district court adopted the magistrate’s

findings and denied the § 2255 motion.

      On December 19, 2008, we granted Petitioner’s motion for a

certificate of appealability (COA) on the following issue only: “whether

the district court erred in finding that counsel was not ineffective for

failing to file a notice of appeal.” (R. doc. no. 85.)

II.   Discussion

      When considering the appeal of a district court’s denial of a § 2255

motion, we review the district court’s factual determinations for clear

error and its legal conclusions de novo. See Lynn v. United States, 365

F.3d 1225, 1232 (11th Cir. 2004). A claim of ineffective assistance of

counsel is a mixed question of law and fact that is reviewed de novo.

Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008) (per

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curium).

      “A defendant claiming ineffective assistance of counsel must show

(1) that counsel’s representation ‘fell below an objective standard of

reasonableness,’ . . . and (2) that counsel’s deficient performance

prejudiced the defendant.” Roe v. Flores-Ortega, 528 U.S. 470, 476-77

(2000) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).

This “test applies to claims, like [Petitioner’s], that counsel was

constitutionally ineffective for failing to file a notice of appeal.” Id. at

477. In the context of such a claim, a petitioner can establish that his

attorney acted in a professionally unreasonable manner either by showing

that counsel “fail[ed] to follow the defendant’s express instructions with

respect to an appeal” or by showing that, in the absence of specific

instructions from the petitioner, there was reason to believe that “a

rational defendant would want to appeal.” Id. at 478, 480. As for the

prejudice prong of the analysis, “prejudice is presumed” when counsel

fails “to file an appeal that the defendant wanted filed.” Gomez-Diaz v.

United States, 433 F.3d 788, 792 (11th Cir. 2005) (citing Roe, 528 U.S. at

483). Thus, “to satisfy the prejudice prong . . . , a defendant who shows

that his attorney has ignored his wishes and failed to appeal his case need

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only demonstrate that, but for the attorney’s deficient performance, he

would have appealed.” Id. In addition, the district court must conduct an

evidentiary hearing on a § 2255 motion “[u]nless the motion and the files

and records of the case conclusively show that the prisoner is entitled to

no relief.” 28 U.S.C. § 2255(b).

       In the present case, Petitioner’s counsel did speak to Petitioner after

learning from a family member that he wanted to appeal—and he received

an express statement from Petitioner that he wished to appeal—but

counsel did not speak to Petitioner again after receiving a conflicting

message from another purported family member that Petitioner no longer

wanted to appeal. As noted above, however, “counsel has a

constitutionally imposed duty to consult with the defendant about an

appeal when there is a reason to think . . . that this particular defendant

reasonably demonstrated to counsel that he was interested in appealing.”

Roe, 528 U.S. at 480.1 Here, Petitioner explicitly told counsel to appeal,

      1
         The government contends that whether Petitioner’s counsel had a duty to
consult with Petitioner after the mother’s phone call is outside of the question posed by
this court in the COA. However, the government cites no case for the proposition that
counsel’s duty to consult about whether a petitioner desired to appeal is a separate issue
from counsel’s duty to file an explicitly requested appeal, and cases have analyzed the
two questions together. See Gomez-Diaz, 433 F.3d at 790-93 (remanding the § 2255
motion for an evidentiary hearing to determine whether the petitioner’s counsel failed to
                                                                              (continued...)

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and yet his counsel did not consult with him after receiving a note from

his secretary stating that a woman claiming to be Petitioner’s mother said

Petitioner no longer wanted to appeal. This call came the day after

Petitioner explicitly informed his counsel that he did want to appeal, and

the record is unclear if his mother said whether she spoke to Petitioner

before or after Petitioner told his attorney to file the notice of appeal.

      Thus, the record before us leaves open many factual questions,

including: 1) whether the woman who purported to be Petitioner’s mother

was really his mother; 2) whether the secretary accurately reported the

substance of the conversation to Petitioner’s counsel; 3) whether

Petitioner authorized his mother to call counsel to advise him that

Petitioner did not want to appeal; and 4) if petitioner did in fact authorize

his mother to make such a call to his counsel, whether that authorization

came before or after Petitioner’s meeting with his counsel in jail on

November 20, when Petitioner explicitly told his counsel that he wanted to

      1
         (...continued)
consult with petitioner about an appeal, although the COA only presented the question
of “[w]hether appellant was denied effective assistance of counsel when counsel failed
to file a timely notice of appeal after appellant allegedly requested counsel to do so”)
(quotations omitted); see also Roe, 528 U.S. at 478 (analyzing the duty to consult and
duty to file an appeal together, and labeling the duty to consult as an “antecedent[]
question” to the question of whether counsel had to file an appeal).


                                            7
appeal.

      With substantial factual questions surrounding Petitioner’s claim, we

cannot agree that “the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. §

2255(b) (emphasis added). Accordingly, we conclude that we must

remand the case for an evidentiary hearing. See id. Although the

magistrate judge acted commendably by instructing Petitioner to file an

affidavit clarifying what he told his mother, the subsequently filed

affidavit did not resolve the factual disputes that are at the heart of

Petitioner’s claim. We do not know whether Petitioner’s counsel’s failure

to consult with him caused him prejudice because we do not know whether

Petitioner wanted to appeal. See Gomez-Diaz, 433 F.3d at 792 (“[T]o

satisfy the prejudice prong . . . , a defendant who shows that his attorney

has ignored his wishes and failed to appeal his case need only demonstrate

that, but for the attorney’s deficient performance, he would have

appealed.”). We also do not know whether counsel’s performance was

deficient, as we do not know the legitimacy, accuracy, authority, and

timeliness of Petitioner’s purported mother’s call advising his counsel that

Petitioner no longer wanted to appeal. Therefore, we remand for an

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evidentiary hearing pursuant to § 2255(b) to determine whether Petitioner

can meet his burden of showing that he would have appealed but for

counsel’s failure to consult with him after the phone call from his mother. 2



III.   Conclusion

       The judgment denying the § 2255 motion is VACATED and the case

is REMANDED to the district court for further proceedings consistent

with this opinion.




       2
        Although we did not explicitly grant a COA to consider whether the district
court should have ordered an evidentiary hearing, such a determination is an intrinsic
part of the issue on which we did grant COA. In Gomez-Diaz, this court granted a COA
solely on the question of “[w]hether appellant was denied effective assistance of
counsel when counsel failed to file a timely notice of appeal after appellant allegedly
requested counsel to do so.” 433 F.3d at 790. We concluded that whether the petitioner
was entitled to an evidentiary hearing was a “subsidiary question[]” that was included in
the COA, and we remanded for an evidentiary hearing. Id. at 790, 794.



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