              Case: 14-14487     Date Filed: 05/03/2017   Page: 1 of 8


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-14487
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket Nos. 5:11-cv-00180-RS-GRJ,
                           5:09-cr-00041-RS-GRJ-2

MICHAEL JERMAINE WEBB,

                                                               Petitioner-Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.

                          ________________________

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

                                   (May 3, 2017)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Michael Jermaine Webb appeals the district court’s denial of his pro se 28

U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, on ineffective-

assistance-of-counsel grounds.     Webb argues that the district court erred in
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rejecting his claim that his trial counsel, Clifford L. Davis, ineffectively failed to

file a direct appeal. After careful review, we affirm.

      For § 2255 proceedings, we review a district court’s legal conclusions de

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

1286, 1287 (11th Cir. 2008). Clear error occurs where our review of the record

leaves us with the definite and firm conviction that a mistake has been made.

United States v. White, 335 F.3d 1314, 1319 (11th Cir. 2003).            A claim of

ineffective assistance of counsel, a mixed question of law and fact, is reviewed de

novo. Devine, 520 F.3d at 1287.

      When a factfinder assesses the credibility of witnesses, we give substantial

deference to its determination. Id. We will overturn a district court’s credibility

determination only if the court’s choice of whom to believe is against the laws of

nature, or so facially inconsistent or improbable that no reasonable factfinder could

accept it.   United States v. Holt, 777 F.3d 1234, 1255 (11th Cir. 2015).

Accordingly, a district court’s finding based on its decision to credit the testimony

of a witness -- that is not contradicted by extrinsic evidence -- can virtually never

be clear error. United States v. Barakat, 130 F.3d 1448, 1453 (11th Cir. 1997).

      The standard set out in Strickland v. Washington, 466 U.S. 668 (1984),

applies in determining whether counsel was ineffective for failing to file a notice of

appeal. Devine, 520 F.3d at 1287. The Strickland standard requires the defendant


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

reasonableness, and (2) counsel’s deficient performance prejudiced the defendant.

Id. at 1288. Under the first prong, counsel’s failure to file an appeal on behalf of a

client who specifically requests it is per se professionally unreasonable.         Id.

Because a lawyer’s failure to file an appeal upon request denies the defendant an

entire judicial proceeding, prejudice is presumed, and the defendant is entitled to a

late appeal. Gomez-Diaz v. United States, 433 F.3d 788, 792 (11th Cir. 2005).

      When the client does not specifically request counsel to file an appeal, the

court must ask whether counsel consulted with his client about the advantages and

disadvantages of appealing and made a reasonable effort to determine his client’s

wishes. Id. If the attorney properly consulted with his client, the attorney’s failure

to file an appeal is only unreasonable if he ignored his client’s express wishes to

appeal. Id. If the attorney did not properly consult with his client, the court must

ask whether counsel had an affirmative duty to consult, which is triggered when

either: (1) any rational defendant would want to appeal, or (2) his particular client

reasonably demonstrated an interest in appealing. Id.

      Here, the district court did not err in dismissing Webb’s claim that his

counsel ineffectively failed to file a notice of appeal. While the parties do not

dispute that Webb requested immediately after sentencing that his counsel file an

appeal, the issue is whether Webb and his counsel subsequently agreed not to file


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an appeal. Because the testimony concerning this issue was contradictory, the

magistrate judge acknowledged that it needed to make a credibility determination.

Notably, the parties proffered no records to verify whether or not Webb and

counsel agreed not to appeal between sentencing and the end of the 14-day time

frame (other than a later letter correspondence).         Without any records, the

magistrate judge and the district court had no circumstantial evidence weighing

either way, and had to base their factual findings on the live testimony provided.

      Based on the testimony, the magistrate judge credited counsel’s testimony

over that of the Webb family, and made findings supported by the record that did

not amount to clear error. White, 335 F.3d at 1319; Barakat, 130 F.3d at 1453.

First, the magistrate judge found that counsel presented well-founded reasons

against appealing -- namely, counsel testified that he and Webb discussed that

Webb was unlikely to succeed on appeal since he was sentenced within the

guideline range and under the mandatory minimum, and that he was more likely to

obtain a reduced sentence by continuing to cooperate under a § 5K1.1 motion and

potential Rule 35 motion. Counsel explained that he and Webb discussed that

Webb would not have been able to challenge the factual weight of the drugs at

sentencing without risking losing the benefit of a § 5K1.1 or Rule 35 motion.

      The magistrate judge further found that counsel and Webb had discussed the

disadvantages of appealing, and that they mutually agreed not to appeal. While


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counsel admitted that Webb said several times during the 14-day time frame that

he wanted to file an appeal, counsel also testified that they had subsequent

discussions about the pros and cons of appealing, they mutually agreed not to

appeal due to those discussions, and Webb’s ultimate decision was not to appeal

based on his confidence in counsel’s advice. Counsel additionally testified that, if

Webb had told him to appeal despite his advice -- which did not happen -- he

would have appealed. Webb added that he often followed counsel’s advice and

wanted their relationship to remain friendly.

      The magistrate judge next found that Webb failed to deny or comment on

counsel’s testimony that they discussed the propriety of an appeal and ultimately

decided against it. As the record shows, Webb did not specifically testify that he

and counsel never discussed the propriety of an appeal or that they never reached a

mutual agreement not to appeal, even though Webb had the opportunity to offer

rebuttal testimony. Although the testimony is somewhat mixed on this issue, it

was not clear error for the magistrate judge to find that Webb never presented

testimony directly rebutting counsel’s claim. See White, 335 F.3d at 1319.

      The magistrate judge also made multiple findings that Webb’s and counsel’s

letter correspondence indicated that they agreed to pursue continued cooperation

with the government, instead of appealing. First, the magistrate judge found that

Webb offered no credible explanation for waiting several months before asking


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about the status of an appeal. Webb testified that he was on lock-down for 23

hours a day, was essentially “handicapped” in that he could not contact counsel,

and wanted his relationship with counsel to remain friendly, but this testimony was

contradicted by testimony that he was aware of his appellate rights and failed to

explain why he still was able to contact his sister about the appeal during the 14-

day time frame.

      Second, the magistrate judge found that Webb’s letters -- dated after the time

to appeal had ended -- revealed his interest in continuing cooperation with the

government. Webb’s September 1, 2010 letter made no mention of an appeal and

requested documents to help find a way to reduce his sentence. Webb’s September

24, 2010 letter suggested that a direct appeal could have been filed as to the

presentence investigation report, but also indicated that he understood that no

appeal was pending and that the time for appealing had passed, and included

documents for his counsel to use “to get [Webb] back into court.” Webb did not

specifically ask about the status of an appeal until his December 12 letter, which

counsel testified asked about an appeal as a predicate for a § 2255 motion. Finally,

Webb’s February 13, 2011 letter contained information that he hoped would be

useful to the government and would further reduce his sentence.

      On this record, we cannot say that the magistrate judge clearly erred in

finding that Webb’s ultimate decision was not to file an appeal. See Devine, 520


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F.3d at 1287; Barakat, 130 F.3d at 1453; White, 335 F.3d at 1319. While there

were several instances where counsel’s answers about his communications with

Webb were qualified and nonspecific, the magistrate judge -- faced with

contradictory testimony from counsel and the Webbs -- was permitted to rely upon

counsel’s general, yet unequivocal assertions that he and Webb discussed the

propriety of an appeal and ultimately decided against it. Devine, 520 F.3d at 1287.

Indeed, none of the facts to which he testified were against the laws of nature, or so

facially inconsistent or improbable that no reasonable factfinder could accept them.

See Holt, 777 F.3d at 1255. Thus, the magistrate judge and the district court were

permitted to make factual findings based upon counsel’s version of the events, and

we are required to give substantial deference to that credibility determination. See

Devine, 520 F.3d at 1287.

      As for Webb’s reliance on Fry v. Pliler, 551 U.S. 112 (2007), it is misplaced.

In Fry, the Supreme Court considered which specific harmless error standard of

review applies for cases on collateral review of a state-court criminal judgment

under 28 U.S.C. § 2254, specifically for assessing the prejudicial impact of a

federal constitutional error in a state-court criminal trial. Id. at 116, 120, 121 n.3.

It held that, when a court is in equipoise as to whether an error was harmless, the

court should assume that the error affected the verdict. Id. Importantly, Fry




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involved the harmless error standard, see id., which is not the standard that applies

here -- we are reviewing for clear error, see Barakat, 130 F.3d at 1453.1

       Because the district court did not clearly err in finding that counsel acted

according to Webb’s ultimate decision not to appeal, it did not err in concluding

that Webb failed to satisfy the first prong of the Strickland ineffectiveness

standard. Devine, 520 F.3d at 1287-88. Accordingly, we affirm the district court’s

denial of Webb’s § 2255 motion.

       AFFIRMED.




1
         Webb’s remaining arguments -- that any mutual decision not to appeal would have been
uninformed, and that counsel’s failure to file an appeal was objectively unreasonable -- are
waived on appeal. As for claim that a decision not to appeal would have been uninformed, he
waived it by failing to object to the magistrate judge’s failure to address the issue. See 11th Cir.
R. 3-1 (directing that failure to object to a magistrate judge’s findings or recommendations
generally waives the right to challenge on appeal the district court’s order based on unobjected-to
factual findings and legal conclusions). Even so, the magistrate judge did not clearly err in
finding that Webb and counsel mutually agreed not to appeal after discussing the pros and cons
of appealing -- an implicit finding that the decision was informed -- since counsel credibly
testified to that fact, and Webb testified that the court notified him of his appellate rights. See
White, 335 F.3d at 1319. As for the argument that counsel’s failure to file an appeal was
objectively unreasonable, Webb similarly waived it by failing to object. As the record shows,
Webb failed to object to the magistrate judge’s finding that the reasonableness of counsel’s
decision not to file an appeal was irrelevant. In any event, we are unpersuaded by the
reasonableness argument since counsel credibly testified that they mutually agreed not to appeal
after counsel consulted with Webb to discuss the pros and cons of appealing.
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