                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             February 14, 2006
                             No. 05-13161                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                            D. C. Docket Nos.
                            04-22123-CV-DLG
                            03-20260-CR-DLG


RAFAEL DEJESUS MEDINA,

                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

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

                           (February 14, 2006)

Before ANDERSON, BIRCH and FAY, Circuit Judges.

PER CURIAM:
       Rafael DeJesus Medina, a federal prisoner, appeals through counsel the

district court’s denial of his motion to vacate, set aside, or correct sentence, filed

pursuant to 28 U.S.C. § 2255.1 Medina filed his § 2255 motion on August 23,

2004; thus, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub.L. No. 104-132, 110 Stat. 1214 (1996), governs this appeal. Medina argues on

appeal that he was denied his right to effective assistance of counsel under the

Sixth Amendment when his trial counsel failed to file a notice of appeal (“NOA”).

For the reasons set forth more fully below, we affirm.

           On August 23, 2004, Medina, who is serving a 70-month sentence imposed

pursuant to his guilty plea for conspiracy to import 500 grams or more of cocaine,

in violation of 21 U.S.C. §§ 960(b)(2) and 963, filed the instant § 2255 motion.

Medina argued in this § 2255 motion that his trial counsel, Scott Saul, provided

ineffective assistance of counsel by failing to file either a NOA on Medina’s

behalf, or to consult with Medina during the ten-day period that Medina had for

filing an NOA following the court’s entry of his judgment of conviction on August

22, 2003.2 The government responded that Medina had not contended in his

       1
         While the same counsel who is representing Medina in this appeal represented him in
his § 2255 motion, he is not the same counsel as in the underlying criminal proceedings.
       2
          Medina also raised in his § 2255 motion, and the court ultimately rejected,
constitutional challenges to his sentence based upon the Supreme Court’s decision in Blakely v.
Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), that the
“statutory maximum” is “not the maximum sentence a judge may impose after finding additional

                                               2
§ 2255 motion that he had asked Saul to file a NOA. Nevertheless, the government

conceded that an evidentiary hearing would be necessary for the court to resolve

this claim.

       The magistrate judge subsequently conducted an evidentiary hearing, during

which Medina and Saul were the only witnesses to testify. Medina, who was a

41-year-old citizen of the Dominican Republic and had an eleventh-grade

education, testified that he had lived in the United States since 1981. After

Medina’s arrest on the instant offense, the court appointed him a public defender.

Medina’s brother, however, subsequently hired Saul to represent Medina, and

Medina plead guilty. Prior to sentencing, Medina and Saul met, discussed

Medina’s presentence investigation report (“PSI”), and filed their objections to it,

including objecting to (1) a two-level enhancement of his offense level for the

possession of a firearm during the commission of a crime, and (2) the denial of

“safety-valve relief.”

       Medina further testified that, immediately after the court overruled these

objections and imposed sentence, and while Medina was still in the courtroom,

Saul informed Medina that they would appeal his sentence and that they would


facts, but the maximum he may impose without any additional findings.” However, our review
is limited to the claim of ineffective assistance of counsel that is contained in the district court’s
certificate of appealability (“COA”). See Murray v. United States, 145 F.3d 1249, 1251 (11th
Cir. 1998) (holding that appellate review is limited to the issues specified in the COA).

                                                   3
“see each other ‘tomorrow.’” Medina, in turn, confirmed that he wished to appeal.

However, even after Medina and his family repeatedly attempted to contact Saul,

Saul never met with Medina or filed an appeal. Medina contended that, within a

few months of sentencing, when Medina’s brother finally was able to contact Saul

by telephone, Saul informed Medina’s brother that Saul had not filed an appeal

because “it was not worth it.” Medina also testified that he did not agree with his

sentence and that he still wished to appeal it.

      On cross-examination, Medina conceded that his brother hired Saul to

provide him with advise regarding his “legal options, with regard to going to trial

or pleading guilty,” and that, prior to sentencing, Medina met with Saul and was

able to contact him by telephone from the federal detention center. Medina also

agreed that the district court, after imposing sentence, verified that Medina

understood that (1) he had a right to appeal his sentence; (2) his NOA would have

to be filed, if at all, within ten days of the imposition of sentence; and (3) the court

would appoint him appellate counsel if he could no longer afford counsel.

      Additionally, Medina clarified that, although he always had at least some

difficulty contacting Saul, he could contact his brother, and that neither he nor his

brother attempted to retain alternative appellate counsel or inform the district court

about their difficulty contacting Saul. In explaining why he did not inform the



                                            4
court of his inability to contact Saul, Medina stated that he did not know how to

raise such a complaint. Moreover, on redirect-examination, he stated that (1) he

had been detained in a federal detention center since his original arrest; (2) the calls

he had made to his counsel from this center had been paid, instead of collect calls;

and (3) he had no prior experiences with filing appeals. Medina’s counsel for his

§ 2255 motion also introduced a copy of Saul’s notice of substitution of counsel,

which did not specify that the parties had agreed that his representation was limited

for trial purposes.

       Saul next testified, stating that he was a solo practitioner, had been

practicing since 1987, and primarily handled criminal-trial work. In April 2003,

Medina’s brother hired Saul to represent Medina in the instant case. Prior to

Medina’s plea of guilty, Saul met with him on a weekly basis, and Medina never

complained to him that he had problems contacting him.3 Saul also stated that,

although he did not have his standard retainer form with him at the hearing, (1) this

form provided that he never handled appeals or other post-conviction matters, and

(2) he would have explained this form to Medina’s brother when he was retained.




       3
          Saul explained that, although English was Medina’s second language, Medina could
speak conversational English. Medina also agreed that, when the court advised him of his
appellate rights during sentencing, he had an interpreter present.

                                              5
      When the government asked Saul whether he spoke with Medina following

sentencing, Saul replied that he could not remember. On cross-examination, Saul

also conceded that he neither withdrew as counsel of record, nor had Medina sign a

waiver of his right to appeal. Saul, however, testified that he remembered

receiving phone calls from Medina’s family “all the time” and that this family

never complained about having trouble reaching him. Saul also stated that he did

not remember if Medina ever expressed to him that he wished to appeal, but that he

was sure that Medina would have wanted to try to obtain the lowest sentence

possible.

      Additionally, Saul testified that: (1) he did not inform either Medina or his

family that he would file a NOA on Medina’s behalf; (2) if he and Medina had

discussed an appeal, he would have advised Medina to hire appellate counsel and

file a NOA within ten days; and (3) Medina’s brother was always aware that Saul

did not handle appeals. When questioned specifically whether he normally files

NOAs, Saul stated that he files them after trials and that he had been filing them

during the six months prior to this instant evidentiary hearing to preserve any

Blakely claims, but that he, otherwise, normally only informs clients of his opinion

of their chances on appeal, the cost of an appeal, and the names of attorneys who

handle appeals. At some point post-sentencing, Saul explained to Medina’s



                                          6
brother that he did not think Medina would be successful on appeal. Saul also

explained that, although he has a “high volume practice” and is frequently in court,

he has four phone lines and advises clients to call him directly via cellular phone

after 8:00 p.m.

      Based on this testimony, Medina’s counsel argued that the government had

not offered evidence rebutting Medina’s testimony that he informed Saul

immediately after sentencing that he wished to appeal and that Saul subsequently

had not spoken with him. He stated that, although Saul had testified that he went

over his retainer agreement with Medina’s brother, the record did not reflect that

Medina, himself, ever saw this agreement. He also contended that, whether or not

Medina’s appeal had merit, he wished to appeal, and Saul either had an obligation

to file a NOA on his behalf or move the court for leave to withdraw his

representation. As relief, Medina’s counsel requested that the court vacate

Medina’s sentence and then reimpose it, so that Medina could file a timely NOA.

      The government responded that, although Saul had testified that he could not

remember if he had a conversation with Medina post-sentencing, this lack of

memory likely was attributable to (1) the fact that nothing unusual had occurred,

and (2) Saul normally advised clients that he does not handle appeals. The

government also argued that the court should consider in weighing Medina’s



                                          7
credibility that he had not sought to file a belated appeal until a significant time

passed and after the Supreme Court had decided Blakely.

      The magistrate judge recommended that Medina’s § 2255 motion be denied.

In doing so, the magistrate acknowledged that Medina was arguing in support of

his ineffectiveness claim that he (1) advised Saul immediately following

sentencing that he wished to appeal, (2) subsequently was unable to contact Saul,

and (3) wished leave from the court to file a belated appeal. The magistrate,

however, determined that Medina’s claim of ineffective assistance of counsel was

not meritorious because he was aware of his right to appeal and chose not to do so.

      The magistrate further explained that neither party disputed that, at

sentencing, (1) the district court advised Medina of his right to appeal, (2) the court

explained that a NOA had to be filed, if at all, within ten days of the entry of the

judgment of conviction, and (3) Medina acknowledged that he understood this

advice. The magistrate discussed that, although Medina knew that he only had ten

days to file a NOA and easily could have contacted his brother, he neither asked

his brother to hire counsel for an appeal, nor complained to the district court about

his inability to contact Saul. Moreover, the magistrate found “highly credible”

Saul’s testimony that: (1) he never handles appeals or post-conviction procedures;

(2) he made this practice clear to Medina; (3) he never promised to file a NOA on



                                            8
Medina’s behalf; (4) he explained to Medina’s brother that he believed any appeal

had little, if any, merit; (5) he always could be reached directly by telephone after

8:00 p.m.; and (6) although he received frequent calls from Medina’s family, he

did not remember receiving post-sentencing calls from Medina.

      Based on this evidence, the magistrate determined that Medina was fully

aware of his right to appeal, along with the fact that a NOA had to be filed within

ten days from the imposition of sentence. The magistrate also determined that

Medina (1) was aware of the fact that his counsel did not handle appeals, (2) had

the opportunity to contact his brother, whom he easily could have reached, to retain

appellate counsel, if he truly had wished to timely appeal his sentencing issues, and

(3) only expressed a desire to appeal after the Supreme Court issued its decision in

Blakely. The magistrate, thus, concluded that Medina could have, and should

have, obtained appellate counsel if he had wished to timely appeal and that he

could not now claim ineffective assistance of counsel.

      In written objections to this report, Medina argued that the record reflected

that he requested that his counsel appeal his sentence. Medina also contended that

we have determined that, when a criminal defendant requests that his trial counsel

file a NOA on his behalf, the failure of counsel to comply constitutes ineffective

assistance of counsel, whether or not the defendant shows that he would have



                                           9
succeeded on appeal. Thus, Medina concluded that, even if he only had retained

Saul to handle his trial proceedings, Saul had a duty to file a NOA to preserve

Medina’s right to appeal.

      On order of the court, the government filed a response to these objections,

explaining that, although Medina testified that he had advised Saul that he wished

to appeal his sentence, the magistrate’s recommendation denying his

ineffectiveness claim was based on the magistrate’s finding that this testimony was

not credible. The government contended that this credibility finding was supported

by (1) the fact that Medina did not raise this ineffectiveness claim and seek the

opportunity to file a belated appeal until almost ten months after sentencing and

after the Supreme Court issued its decision in Blakely, and (2) the magistrate’s

finding as “highly credible” Saul’s testimony that he never does appellate work and

Medina never asked him to file a NOA. The government, thus, concluded that our

caselaw requiring defense counsel to file a NOA when requested by the defendant

was inapplicable. Moreover, the government contended that, although the

Supreme Court identified in Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S.Ct.

1029, 1036, 145 L.Ed.2d 985 (2000), circumstances wherein counsel’s failure to

file a NOA will amount to ineffective assistance of counsel, regardless of whether




                                          10
a request to do so was made, none of these circumstances existed in the instant

case.

        After considering the magistrate’s recommendation and conducting a de

novo review, the court summarily adopted this recommendation and denied

Medina’s § 2255 motion. However, on Medina’s motion, the magistrate

recommended that the court grant a COA on the sole claim of ineffective assistance

of counsel. The court, in turn, adopted this recommendation.

        As discussed above, Medina argues on appeal that Saul provided ineffective

assistance of counsel by failing to file a NOA on Medina’s behalf after Medina

communicated to Saul his desire to appeal his sentence. Medina alternatively

argues that, even if we were to conclude that he did not make this request, Saul’s

performance was deficient because a reasonable counsel would have consulted

with his client about this right to appeal when it was clear that his client wished to

appeal. Medina contends that this deficient performance prejudiced him because

the record reflects that, but for this deficient performance, he would have timely

appealed. Finally, Medina asserts that the district court, in adopting the

magistrate’s recommendation, erroneously relied on (1) the fact that Medina did

not ask his family to retain another attorney to file the NOA, and (2) its mistaken

determination that Medina knew that Saul did not handle appeals.



                                           11
      When reviewing the district court’s denial of a § 2255 motion, we review

questions of law de novo and findings of fact for clear error. Varela v. United

States, 400 F.3d 864, 867 n.3 (11th Cir.), cert. denied, 126 S.Ct. 312 (2005).

“Whether a criminal defendant has received effective assistance of counsel is a

mixed question of fact and law.” Mincey v. Head, 206 F.3d 1106, 1142 (11th Cir.

2000). We review for clear error questions of fact underlying the claim and

reviews de novo the district court’s decision on the ultimate issue of “whether

counsel’s performance passed constitutional muster.” Id.

      In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984), the Supreme Court established a two-prong test for deciding whether a

defendant has received ineffective assistance of counsel. The defendant must

establish that (1) his attorney’s performance failed to meet “an objective standard

of reasonableness,” id. at 688, 104 S.Ct. at 2064; and (2) the defendant’s rights

were prejudiced as a result of his attorney’s substandard performance, id. at 693,

104 S.Ct. at 2067. Moreover, the Supreme Court subsequently determined that this

two-part test applies to claims—such as here—that a defendant lost his right to

appeal because of his attorney’s failure to file an appeal on his behalf. Roe, 528

U.S. at 476-77, 120 S.Ct. at 1034.




                                          12
      As a preliminary matter, and as both parties concede, we have long held, and

the Supreme Court determined in Roe, that an attorney’s failure to file an appeal

after a defendant requests that he or she do so normally should result in the court

granting him an out-of-time appeal, even absent the defendant showing that he or

she would have had any viable grounds for appeal. See id. at 477, 120 S.Ct. at

1035; see also Martin v. United States, 81 F.3d 1083, 1084 (11th Cir. 1996). In

Gomez-Diaz v. United States, No. 04-11105 (11th Cir. Dec. 20, 2005), we recently

examined a district court’s denial of a claim of ineffective assistance of counsel,

which was based on Gomez-Diaz’s contention that his appointed counsel had

failed to file a NOA as requested. See id., manuscript op. at 3. We determined,

among other things, that, despite Gomez-Diaz’s waiver of some of his appellate

rights, remand was necessary for the district court to conduct an evidentiary

hearing and determine whether Gomez-Diaz’s initial statement of his desire to

appeal was sufficient to trigger his counsel’s per se duty to appeal. See id. at 9.

We also explained that, if, on remand, the district court found either that Gomez-

Diaz’s attorney had acted contrary to his client’s wishes or failed to determine his

client’s wishes, the court should presume prejudice and grant Gomez-Diaz an out-

of-time appeal. See id. at 10.




                                          13
      Examining the record here, Medina testified during the evidentiary hearing

that he expressed to Saul his desire to appeal his sentence. On the other hand,

although Saul testified that did not remember if he had any conversations with

Medina post-sentencing, Saul confirmed that he never handles appeals or other

post-conviction matters and that, prior to the past six months, he only had informed

clients who plead guilty of his opinion of their chances on appeal, the cost of an

appeal, and the names of attorneys who handle appeals. The district court, in

adopting the magistrate’s factual findings, and in at least implicitly finding more

credible Saul’s testimony, determined that Medina only had expressed a desire to

appeal after the Supreme Court issued its decision in Blakely. Moreover, we have

explained that the determination of the credibility of a testifying attorney during an

evidentiary hearing on a claim of ineffective assistance of counsel is “within the

province of the district court, which had the opportunity to observe and study the

witness.” See Carr v. Schofield, 364 F.3d 1246, 1264-65 (11th Cir.), cert. denied,

125 S.Ct. 815 (2004). Thus, unlike the facts in Gomez-Diaz, the court in the

instant case, after conducting an evidentiary hearing, did not find credible

Medina’s testimony that he asked Saul to file a NOA on his behalf. Thus

concluding that the per se duty to appeal outlined in Roe, Martin, and Gomez-Diaz

was not applicable.



                                          14
      In addition to concluding that the two-part Strickland test applies to a claim

that a defendant lost his right to appeal because of ineffective assistance of counsel,

the Supreme Court in Roe explained that, where a defendant neither instructs

counsel to file an appeal, nor asks that an appeal not be taken, the relevant question

in determining whether counsel has performed deficiently by not filing a NOA is

“whether counsel in fact consulted with the defendant about an appeal.” Roe, 528

U.S. at 478, 120 S.Ct. at 1035. The Supreme Court explained that, if counsel has

not consulted with the defendant, the court must determine “whether counsel’s

failure to consult with the defendant itself constitutes deficient performance.” Id.

In making this determination, the Roe Court rejected a “bright-line rule that

counsel must always consult with the defendant regarding an appeal,” and, instead,

instructed as follows:

      [C]ounsel has a constitutionally imposed duty to consult with the
      defendant about an appeal 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) that this particular
      defendant reasonably demonstrated to counsel that he was interested
      in appealing. In making this determination, courts must take into
      account all the information counsel knew or should have known.

Id. at 480, 120 S.Ct. at 1036.

      In addressing the prejudice-prong of the Strickland test, the Roe Court

explained that, “to show prejudice in these circumstances, a defendant must



                                          15
demonstrate that there is 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 1038-39. In satisfying this burden of proof, the defendant need

not “specify the points he would raise were his right to appeal reinstated.” Id. at

486, 120 S.Ct. at 1039-40. On the other hand, although the defendant may prove

deficient performance by showing that he demonstrated to counsel his interest in an

appeal, he cannot rely on this evidence solely to establish that, “had [he] received

reasonable advice from counsel about the appeal, he would have instructed his

counsel to file an appeal.” Id. at 486, 120 S.Ct. at 1039.

      Medina is citing, as evidence of deficient performance, to his own testimony

that he had (1) expressed dissatisfaction about his sentence to his counsel and

(2) preserved objections to sentencing rulings that he claimed he wished to

challenge on appeal. Moreover, he argues, Saul conceded that he was sure that

Medina would have wanted to seek the lowest possible sentence on appeal. On the

other hand, the court noted Saul’s testimony that post-sentencing he had informed

Medina’s brother that he did not think there were any issues that had merit.

      Regardless, we need not determine whether Saul’s failure to consult with

Medina constituted deficient performance because Medina has failed to establish

the prejudice-prong in Roe, that is, that there is a reasonable probability that, but



                                           16
for counsel’s deficient failure to consult with him about an appeal, he would have

timely appealed. See Roe, 528 U.S. at 484, 120 S.Ct. at 1038-39. Although

Medina has now testified that he wished to timely appeal his sentence and has cited

to issues that he believes would have been meritorious, or at least arguable, on

appeal, he has conceded that he understood the district court’s advice that he had to

file an appeal, if at all, within ten days of the imposition of sentence. Medina also

agreed that the court informed him that, if he could not afford counsel, the court

would appoint him appellate counsel.

      Furthermore, whether or not Medina had trouble contacting Saul post-

sentencing, he has conceded that he always could contact his brother and failed to

explain why he could not have asked his brother either to hire alternative counsel

or notify the court of his desire to appeal. Indeed, Medina did not file the instant

§ 2255 motion, arguing ineffective assistance of counsel and seeking to file a

belated direct appeal, until August 23, 2004, more than a year after the court

entered his judgment of conviction on August 22, 2003. Additionally, as the

district court observed, Medina’s filing of this § 2255 motion occurred only after

the Supreme Court issued its decision in Blakely, which Medina also relied upon in

seeking § 2255 relief, and which we have concluded is not applicable to cases on

collateral review. See Varela, 400 F.3d at 866-68. Thus, after examining



                                          17
Medina’s ineffectiveness claim in light of all of the evidence, he has failed to

establish prejudice. See Strickland, 466 U.S. at 695, 104 S.Ct. at 2069 (explaining

that a court hearing an ineffectiveness claim must consider the totality of the

evidence).

      Accordingly, we conclude that the district court did not err in denying

Medina’s claim of ineffective assistance of trial counsel. We, therefore, affirm.

      AFFIRMED.




                                          18
