                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 07-11012                   March 13, 2008
                         Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                       ________________________

                   D. C. Docket Nos. 05-22764-CV-PAS
                                     04-20035-CR-PAS

MARCIAL CUERO,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

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

                             (March 13, 2008)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
      Federal prisoner Marcial Cuero, with the assistance of counsel, appeals the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence. We

issued a certificate of appealability (“COA”) as to whether the district court erred

in denying Cuero’s claim that his trial counsel was ineffective for failing to file a

notice of appeal. Cuero argues that his trial counsel should have filed an appeal

because his counsel did not sufficiently consult with him about an appeal. Cuero

also argues that his trial counsel incorrectly advised him that he was barred from

appealing because of the appellate waiver in his plea bargain.

I.    Scope of COA

      As a preliminary matter, we must determine if Cuero’s incorrect-advice

argument is within the scope of the COA. To obtain a COA, the prisoner must

make a “substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Appellate review is limited to the issues specified in the COA.

Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).

      Since Cuero’s incorrect-advice argument is outside the scope of the COA,

we will not consider it further. See id.

II.   Duty to Consult

      In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal

conclusions de novo and factual findings for clear error. Lynn v. United States, 365



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

mixed question of law and fact that we review de novo. Caderno v. United States,

256 F.3d 1213, 1216-17 (11th Cir. 2001). We allot “substantial deference to the

factfinder . . . . in reaching credibility determinations with respect to witness

testimony.” United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003)

(quotation omitted).

      In Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029 (2000), the Supreme

Court held that Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984),

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

appeal. Flores-Ortega, 528 U.S. at 477, 120 S. Ct. at 1034. Under Strickland, a

movant demonstrates ineffective assistance of counsel by showing: “(1) that

counsel’s representation fell below an objective standard of reasonableness, and (2)

that counsel’s deficient performance prejudiced the defendant.” Id. at 476-77, 120

S. Ct. at 1034 (quotation and citations omitted).

      With respect to the first prong of Strickland, whether counsel’s

representation fell below an objective standard of reasonableness, the Supreme

Court reaffirmed that “an attorney who fails to file an appeal on behalf of a client

who specifically requests it acts in a professionally unreasonable manner per se.”

Gomez-Diaz v. United States, 433 F.3d 788, 791-92 (11th Cir. 2005) (citing



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Flores-Ortega, 528 U.S. at 477, 120 S. Ct. at 1035). If the defendant does not

instruct his counsel to file an appeal, counsel’s performance would be

constitutionally adequate if he consulted with the defendant about an appeal.

Flores-Ortega, 528 U.S. at 478, 120 S. Ct. at 1035.

      The Supreme Court defined the term “consult” specifically to mean

“advising the defendant about the advantages and disadvantages of taking an

appeal, and making a reasonable effort to discover the defendant’s wishes.” Id.

“[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.” Id. at 480, 120 S. Ct. at 1036. To determine if a rational

defendant would want to appeal, we consider it “relevant to ask whether there are

any potential non-frivolous grounds for appeal, whether there was a guilty plea,

and whether the plea expressly waived the right to appeal.” Otero v. United States,

499 F.3d 1267, 1271 (11th Cir. 2007). Whether the defendant reasonably

demonstrated to counsel that he was interested in appealing is a factual finding that

we review for clear error. Id. at 1269, 1271.

      With respect to the second prong of the Strickland test, whether counsel’s



                                          4
deficient performance prejudiced the defendant, the Flores-Ortega Court held that

“to show prejudice in these circumstances, a defendant must 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., 528 U.S. at 484, 120 S.

Ct. at 1038. The defendant need not show the putative merits of such an appeal.

Id., 528 U.S. at 485-86, 120 S. Ct. at 1039-40; Gomez-Diaz, 433 F.3d at 793.

       Since a rational defendant would not have been interested in an appeal in

this case and the record supports the district court’s finding that Cuero never

indicated any interest in an appeal, trial counsel did not have a constitutional duty

to consult with Cuero about an appeal. Thus, even if trial counsel insufficiently

consulted with Cuero, it did not amount to ineffective assistance of counsel.

III.   Conclusion

       Having reviewed the record and the parties’ briefs, we conclude that the

district court’s denial of Cuero’s § 2255 motion is due to be affirmed.

       AFFIRMED.




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