                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-7553


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DINARLDO MATTHEWS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.   Robert G. Doumar, Senior
District Judge. (2:00-cr-00213-RGD)


Argued:   May 11, 2010                    Decided:   June 21, 2010


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Arenda Lauretta Allen, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellant.       Richard Daniel
Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee.   ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, for Appellant.          Neil H.
MacBride, United States Attorney, Alexandria, Virginia, Kevin M.
Comstock, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Dinarldo Matthews appeals from an order of the district

court denying his 28 U.S.C. § 2255 (2006) motion.                                        Matthews

contends       that    his    trial        counsel         provided          constitutionally

ineffective representation in failing either to file a notice of

appeal    or    consult      with     Matthews            regarding         an    appeal      after

Matthews had pled guilty to drug charges.                            We affirm.



                                             I.

     Matthews         pled   guilty        to       one     count       of       conspiracy     to

distribute      and    possess      with    intent         to    distribute         heroin     and

cocaine.       Matthews’s plea agreement included an explicit waiver

of his right to appeal.             In exchange, the Government reduced the

drug quantity for which Matthews was responsible and requested a

smaller    enhancement        for        Matthews’s         leadership            role   in     the

conspiracy.       In accord with this agreement, Matthews’s advisory

sentencing range under the United States Sentencing Guidelines

(“Guidelines”) decreased from an initial range of 324 to 405

months’    imprisonment       to     a    new       range       of    210    to    262   months.

Matthews ultimately received a prison sentence of 225 months.

The district court then informed Matthews that notwithstanding

his waiver of his right to appeal, he could still file a notice

of appeal.        Matthews told the court that he did not wish to

appeal.

                                                2
        After his appeal period had expired, Matthews requested an

extension of time in which to file an appeal.                            The district

court denied this request.                     Matthews then filed this § 2255

motion,     alleging         that      after     the    district      judge   left    the

courtroom at sentencing, Matthews instructed his trial counsel

to   file    a    notice         of    appeal.         The   district    court   denied

Matthews’s motion without holding an evidentiary hearing.                            This

court    granted        a   certificate        of   appealability,      reversed,    and

remanded with instructions to hold a hearing.                      See United States

v. Matthews, 239 F. App’x 806, 807 (4th Cir. 2007).

        At the hearing, Matthews and his three sisters testified

that, after being sentenced, Matthews told his trial counsel

that he wished to appeal.                Matthews further testified that prior

to sentencing, he had expected to receive a sentence of ten

years based on his plea agreement, and not a sentence of 225

months.     Matthews and his sisters testified that they tried and

failed to reach trial counsel to instruct him to file a notice

of appeal.

        Matthews’s trial counsel testified to the contrary.                           He

explained        that       he   had    seventeen        years   of     experience    in

representing criminal defendants, and that he had, in the past,

filed notices of appeal for clients who had waived their right

to appeal.        Counsel further testified that his practice was to

keep notes and records of all court appearances, meetings, and

                                               3
telephone calls with clients.                   These notes contained no mention

of Matthews’s request to appeal, and trial counsel, relying on

the notes, testified that Matthews had not requested him to file

a   notice    of    appeal.     Trial       counsel        also    testified        that     had

Matthews      instructed      him    to     appeal,        he   would      have    done      so.

Finally,      counsel      testified,           again      contrary        to     Matthews’s

assertion that counsel had been unreachable, that he had met

with Matthews in prison several days after sentencing and that

Matthews did not mention an appeal during that meeting.

      The district court found that Matthews never requested that

his trial counsel file a notice of appeal on his behalf.                                     The

court credited counsel’s testimony given his years of experience

and his copious notes detailing his interactions with Matthews.

The court discredited the testimony of Matthews and his sisters

because      the   sisters    had    difficulty           remembering       other       details

about the sentencing proceeding, and because it would have been

illogical     for    Matthews       to    seek       to   appeal   based        both    on   his

nearly contemporaneous statement to the court that he did not

wish to appeal and on the terms of his plea agreement.

      Matthews again appealed the district court’s denial of his

§   2255     motion.     Noting          that       the   conflict    in    the        evidence

rendered the district court’s conclusion “debatable,” we granted

a certificate of appealability on the issue of “[w]hether the



                                                4
district court committed clear error in finding that Matthews

did not ask his attorney to file an appeal.”



                                           II.

        In Strickland v. Washington, 466 U.S. 668, 687 (1984), the

Supreme Court established that defendants have a Sixth Amendment

right        to     “reasonably   effective”       legal    assistance.            For    a

defendant to prove a violation of this right, he must show that

his attorney’s representation “fell below an objective standard

of reasonableness,” id. at 688, and that this failure prejudiced

him, id. at 694.

        On    appeal,      Matthews   argues      that    his     trial    counsel       was

ineffective.             He contends both that the district court clearly

erred in finding that he did not request counsel to file a

notice of appeal, and also that even if he did not instruct

counsel        to    appeal,    counsel    was    ineffective       for     failing       to

consult Matthews about whether Matthews wanted to appeal.                                 We

consider these contentions in turn.

                                           A.

        When      counsel     fails   to   file    a     notice    of     appeal    after

receiving specific instructions from a defendant to do so, this

constitutes          a    violation   of   the    defendant’s       Sixth     Amendment

rights, regardless of whether the defendant is likely to prevail

on appeal.           See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).

                                            5
Thus, the sole question necessary to resolve Matthews’s first

contention is whether he did, in fact, instruct counsel to file

a notice of appeal.

      We   reverse    a   district   court’s       factual    finding   that    a

defendant did not instruct trial counsel to file a notice of

appeal only if, after giving “due regard to the trial court’s

opportunity to judge the witnesses’ credibility,” we determine

that the district court’s finding is “clearly erroneous.”                     Fed.

R. Civ. P. 52(a)(6).        “[A] finding is ‘clearly erroneous’ when

although there is evidence to support it, the reviewing court on

the   entire    evidence    is   left       with   the   definite     and     firm

conviction that a mistake has been committed.”                Anderson v. City

of Bessemer City, 470 U.S. 564, 573 (1985) (internal quotation

marks omitted).

      A district judge’s credibility determinations deserve “even

greater deference” than other factual findings.                     Id. at 575.

When, as here, “a trial judge’s finding is based on his decision

to credit the testimony of one of two or more witnesses, each of

whom has told a coherent and facially plausible story that is

not contradicted by extrinsic evidence, that finding, if not

internally inconsistent, can virtually never be clear error.”

Id.

      Under    this   deferential    standard,      we   cannot     disturb    the

district   court’s    finding    that   Matthews     failed    to    request    an

                                        6
appeal.      The     district      court        credited     an    experienced     and

accomplished defense attorney who kept detailed written notes,

rather than Matthews and his sisters, who offered self-serving,

illogical, and incomplete testimony.

     Moreover,       no    extrinsic      evidence      contradicted        counsel’s

account.    Indeed, all of the evidence supported it: Matthews had

pled guilty, received a much lower sentence than he would have

absent his plea agreement, and proclaimed in open court that he

did not wish to appeal.           Thus, the district court’s finding that

Matthews did not, minutes later, instruct his trial counsel to

file a notice of appeal is not clearly erroneous.

                                          B.

     Matthews also argues that his counsel unreasonably failed

to consult with him regarding an appeal. *                       When the defendant

fails to give his attorney a clear instruction to appeal, the

Supreme    Court     had   held    that    a     reviewing       court   must   decide

whether    counsel    nevertheless        had    a   duty   to    consult   with   his


     *
       The Government contends that this issue falls outside the
scope of the certificate of appealability.       However, as the
Supreme Court noted in Flores-Ortega, whether counsel consulted
with the defendant about appeal is an “antecedent” question that
must be considered before a court can resolve whether counsel’s
failure to file a notice of appeal was reasonable under the
circumstances.   528 U.S. at 478.    Prior to oral argument, we
ordered supplemental briefing on this issue.          Because the
parties have thus had an opportunity to brief and argue
counsel’s alleged duty to consult, the Government suffers no
prejudice by having to address this antecedent issue.


                                           7
client regarding an appeal.       The Court has emphasized that “in

the vast majority of cases,” counsel has such a duty.         Flores-

Ortega, 528 U.S. at 481.

      This duty to consult arises “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.”        Id. at 480.   As

the   district   court   found,    Matthews    did   not   “reasonably

demonstrate[]” an interest in appealing.        Thus, his counsel had

a duty to consult him only if a rational defendant in Matthews’s

position would wish to appeal.         The record provides no support

for such a conclusion.

      Here, Matthews pled guilty to the offense, and in so doing

expressly and voluntarily waived his right to appeal.            As a

result of that agreement, Matthews received a sentence nearly

100 months shorter than the bottom of his original Guidelines

range.   At oral argument before us, Matthews’s appellate counsel

conceded that Matthews would gain nothing from an appeal.          In

fact, because any appeal would breach his obligations under the

favorable plea agreement, Matthews would likely have received a

longer prison sentence if he chose to file a notice of appeal.

Surely, no rational defendant would have chosen to appeal when



                                   8
there was literally no upside -- and potentially a significant

downside -- to doing so.

     Accordingly, we hold that this constitutes one of the rare

cases in which an attorney did not have a duty to consult with

his client regarding an appeal.



                              III.

     The judgment of the district court is

                                                      AFFIRMED.




                                  9
