                    Case: 11-14781         Date Filed: 07/24/2012   Page: 1 of 5




                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-14781
                                        Non-Argument Calendar
                                      ________________________

                D.C. Docket Nos. 0:10-cv-62369-JIC ; 0:10-cr-60050-JIC-1



LOUIS WEEKS,

llllllllllllllllllllllllllllllllllllllll                                 Petitioner-Appellant,

                                                 versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                               Respondent-Appellee.

                                     ________________________

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


Before DUBINA, Chief Judge, FAY, and EDMONDSON, Circuit Judges.

PER CURIAM:

         Appellant Louis Weeks appeals the denial of his motion to vacate his
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federal sentence, pursuant to 28 U.S.C. § 2255. We granted a certificate of

appealability on the following issue: “Whether the district court erred in

determining that counsel’s failure to file a notice of appeal was not ineffective

assistance? See Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed.

2d 985 (2000); Thompson v. United States, 504 F.3d 1203 (11th Cir. 2007).”

Weeks argues on appeal that his counsel provided ineffective assistance because

he failed to file a notice of appeal after Weeks instructed him to do so, and that

Weeks would have pursued an appeal had his counsel adequately consulted with

him.

       In a § 2255 proceeding, “we review a district court’s legal conclusions de

novo and factual findings for clear error.” Devine v. United States, 520 F.3d 1286,

1287 (11th Cir. 2008). Whether counsel was ineffective is a mixed question of law

and fact that we review de novo. Id. “We allot substantial deference to the

factfinder in reaching credibility determinations with respect to witness

testimony.” Id. (internal quotation marks and ellipsis omitted).

       To prevail on an ineffective assistance of counsel claim, a party must

establish that (1) his counsel’s performance was deficient and (2) that he suffered

prejudice as a result of that deficient performance. Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). The Strickland test

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also applies to claims for ineffective assistance based on the failure to file a notice

of appeal. Flores-Ortega, 528 U.S. at 476-77, 120 S. Ct. at 1034.       Because the

moving party bears the burden of establishing a right to relief in habeas

proceedings, when “counsel cannot recall specifics about his actions due to the

passage of time and faded memory, we presume counsel performed reasonably and

exercised reasonable professional judgment.” Blankenship v. Hall, 542 F.3d 1253,

1274 (11th Cir. 2008) (28 U.S.C. § 2254 context); cert. denied, 131 S. Ct. 1041

(2011).

      With respect to the performance prong, an attorney who fails to follow his

client’s specific instructions to file a notice of appeal acts in a professionally

unreasonable manner. Flores-Ortega, 528 U.S. at 477, 120 S. Ct. at 1035. By the

same logic, a client cannot later claim that his attorney was deficient in failing to

file an appeal when the client explicitly instructed his attorney not to file an

appeal. Id. In the absence of specific instructions, an attorney has a constitutional

duty to consult with his client about an appeal when (1) a rational defendant would

want to appeal, or (2) the defendant reasonably demonstrated to counsel an interest

in seeking an appeal. Id. at 480, 120 S. Ct. at 1036. Adequate consultation

requires the following: (1) “informing a client about his right to appeal”;

(2) “advising the client about the advantages and disadvantages of taking an

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appeal”; and (3) “making a reasonable effort to determine whether the client

wishes to pursue an appeal, regardless of the merits of such an appeal.”

Thompson, 504 F.3d at 1206. Any waiver of the right to appeal must be knowing

and voluntary. Id. at 1206-07.

      With respect to the prejudice prong, the movant must establish that, had he

received reasonable advice from his attorney about an appeal, he would have

instructed his attorney to file an appeal. Flores-Ortega, 528 U.S. at 486, 120 S.

Ct. at 1039. While “showing nonfrivolous grounds for appeal may give weight to

the contention that the defendant would have appealed,” the movant need only

show that, but for his attorney’s deficient performance, he would have appealed.

Id. at 486, 120 S. Ct. at 1039-40.

      The district court found that based on credibility determinations, counsel

discussed with Weeks options to reduce his sentence; that counsel told Weeks he

could not appeal and cooperate with the government at the same time; that counsel

told Weeks his best option was to pursue cooperation; and that Weeks thereafter

decided to pursue cooperation with the government rather than an appeal. The

district court’s factual findings were not clearly erroneous. Thus, we conclude

from the record that counsel’s performance was not deficient because he consulted

with Weeks about whether to take an appeal and made a reasonable effort to

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determine and carry out Weeks’s wishes. Thompson, 504 F.3d at 1206.

Accordingly, we affirm the district court’s order denying Weeks’s § 2255 motion.

            AFFIRMED.




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