                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-6395



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.


CHESTER EDGERTON,

                Defendant - Appellant.




Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:03-cr-00301-BO)


Argued:   May 13, 2008                      Decided:   June 27, 2008


Before TRAXLER and GREGORY, Circuit Judges, and Alexander
WILLIAMS, Jr., United States District Judge for the District of
Maryland, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Lewis Alston Thompson, III, BANZET, THOMPSON & STYERS,
PLLC, Warrenton, North Carolina, for Appellant.  Anne Margaret
Hayes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: George E. B. Holding, United
States Attorney, Steve R. Matheny, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Chester Edgerton appeals the district court’s denial of his

28    U.S.C.    §   2255    motion     to   vacate    based   on   his   attorney’s

failure to file an appeal on his behalf.                   Because Edgerton has

not shown that a rational defendant in his circumstance would

have    wanted      to   appeal   or    “reasonably      demonstrated”     that   he

expressed interest in appealing, we must affirm.


                                            I.

       On December 1, 2003, Edgerton pled guilty to possession

with intent to distribute more than 50 grams of cocaine base,

cocaine and marijuana, in violation of 21 U.S.C. § 841(a)(1);

possession of a firearm by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1) and 924; using, carrying and possessing a

firearm during and in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A); and, maintaining a place

for    the     purpose     of   manufacturing,        distributing   or   using   a

controlled substance, in violation of 21 U.S.C. § 856(a).                         On

May 4, 2004, Edgerton was sentenced, without a plea agreement,

to a 352-month term of imprisonment.                 He did not appeal.

       Edgerton claims, however, that he requested his attorney,

Mark Edwards, to file an appeal.                 When no appeal was filed,

Edgerton filed a motion to vacate pursuant to 28 U.S.C. § 2255,



                                            3
alleging that Edwards failed to file a notice of appeal despite

his request to do so.            An evidentiary hearing was held where

Edgerton was represented by new counsel.

      At the evidentiary hearing, Edgerton testified that while

he was in the Franklin County Jail following his sentencing, he

phoned Edwards and requested an appeal.                Edgerton testified that

Edwards “said he would look into it.”                   (J.A. 53.)      Edgerton

could not recall when this phone call was made - only that he

was in the Franklin County Jail “for something over a month.”

(J.A. 52.)     Prior to this phone conversation, Edgerton had not

discussed    his     appellate   rights    or    “any    grounds   or   possible

appeal issues.”       (J.A. 53.)

      To the contrary, Edwards testified that he did not recall

ever talking to Edgerton after he was sentenced, and he had no

recollection of ever talking to Edgerton about the advisability

of   an   appeal.1      (J.A.    46-47.)        More    specifically,    Edwards

testified that he did not recall having a telephone conversation

with Edgerton about his appeal.           (J.A. 55.)

      Edwards also testified that when a client specifically asks

him to file an appeal, he does so.               He even goes so far as to


      1
      Edwards also noted that his recollection was unclear
because his Edgerton records were maintained on a computer
software program that was no longer working. (J.A. 47.)


                                      4
file       Anders2      briefs     on     behalf       of    clients.         Further,   Edwards

stated that had there been discussions regarding an appeal, he

would have advised Edgerton to not seek an appeal because there

were “no grounds to pursue” and an appeal could “kill any chance

Edgerton might have [had] of coming back on a Rule 35” motion.

According          to     Edwards,        Edgerton           expressed        an   interest    in

cooperating with authorities as his sentencing date approached

in the hopes of obtaining a reduced sentence.

       In     addition,        Edwards       vaguely          remembered       Edgerton     being

offered       a    written         plea    agreement,          which     he    did    not   sign.

Edwards testified that the proposed plea likely contained an

appeal waiver provision as that was the policy of the United

States Attorney Office at the time. (J.A. 44-45.)                                  After hearing

this conflicting testimony, the district court found Edwards’s

testimony credible and dismissed Edgerton’s claim.



                                               II.

       Edgerton argues that the district court erred in dismissing

his § 2255 motion.                  He contends that Edwards disregarded his

request       to        file   a    notice     of           appeal   and,      therefore,     was

ineffective as counsel.                    In response, the government contends


       2
           Anders v. California, 386 U.S. 738 (1967).


                                                   5
that there is no evidence, other than Edgerton’s own speculative

recollections, that a discussion took place between Edgerton and

Edwards concerning an appeal.

       “When       reviewing    an    appeal      from    the   denial    of    a    §    2255

motion,       we     review     de     novo        the     district      court’s         legal

conclusions.”          United States v. Poindexter, 492 F.3d 263, 267

(4th Cir. 2007) (citing United States v. Nicholson, 475 F.3d

241,    248    (4th     Cir.    2007)).            The    district    court’s        factual

findings are reviewed for clear error.                       See Mickens v. Taylor,

240 F.3d 348, 360 (4th Cir. 2001).                       The Supreme Court has long

recognized that under the Sixth Amendment the right to counsel

includes “the right to effective assistance of counsel.”                                 U.S.

Const. amend. VI.; see also McMann v. Richardson, 397 U.S. 759,

771    n.14    (1970).         In    order    to    establish     a   Sixth     Amendment

violation based on counsel’s failure to appeal, Edgerton must

prove that (1) counsel was ineffective and (2) but for counsel’s

ineffectiveness, an appeal would have been filed.                              See Roe v.

Flores-Ortega, 528 U.S. 470 (2000).                      While the Constitution does

not give a criminal defendant the right to appeal as a matter of

right, the United States Code, 18 U.S.C. § 3742, does.                              Thus, an

attorney’s failure to file an appeal after being instructed by

his client to do so is per se ineffective.                        Flores-Ortega, 492

F.3d at 483.

                                              6
      In Flores-Ortega, the Supreme Court held that “counsel 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.          In making this

determination, we must “take into account all the information

counsel knew or should have known” and consider “whether the

defendant received the sentence bargained for as part of the

plea and whether the plea expressly reserved or waived some or

all   appeal   rights.”       Id.         A       presumption    of    prejudice        also

applies, even if a defendant did not instruct his attorney to

file an appeal, when the defendant can show, had he received

reasonable     advice      from     his       attorney,       that     he    would      have

instructed his attorney to file a timely notice of appeal.                                Id.

at 486.      Whether a defendant meets this standard turns on the

specific facts of each case.              Id.

      As    noted   above,    Edgerton            maintains     that    he     telephoned

Edwards     after   his    sentencing         and    requested       that    he    file   an

appeal.     The district court found, based on Edwards’s testimony,

that Edgerton did not unequivocally instruct Edwards to file a

timely     notice   of    appeal.         Given      Edgerton’s       sparse      and   non-

                                              7
specific recollections, the district court’s credibility finding

is not clearly erroneous.

       Notwithstanding         this,    Edgerton          contends      that    Edwards,

nevertheless, was ineffective because he failed to consult with

him regarding an appeal.             See United States v. Witherspoon, 231

F.3d 923 (4th Cir. 2000).              He points out that not only does he

not recall Edwards advising him of his appeal rights but that

Edwards        similarly      testified          to   not     recalling        having   a

conversation with him.              Further, Edgerton argues that he had a

rational       basis   for    filing    an       appeal     and   was   prejudiced      by

Edwards’s failure to do so; that is, (1) he allegedly rejected a

plea       agreement   with   the    Government       to    preserve     his    right   to

appeal, and (2) had an appeal been filed, his sentence could

have been reviewed in light of Blakley v. Washington3 and United

States v. Booker.4             Thus, the salient issue is “whether the

failure       to   consult    itself   constitutes          deficient    performance.”

Flores-Ortega, 528 U.S. at 478.

       The Supreme Court has rejected a bright-line rule requiring

counsel to always consult with a defendant regarding an appeal.

Flores-Ortega, 528 U.S. at 480.                   Proffering an example similar



       3
           542 U.S. 296 (2004).
       4
           543 U.S. 220 (2005).


                                             8
to   Edgerton’s   case,     the    Supreme      Court      reasoned       that    when     a

defendant does not express an interest in appealing and counsel

concludes that there are no nonfrivolous grounds for an appeal

“it would be difficult to say that counsel is ‘professionally

unreasonable’ as a constitutional matter, in not consulting with

a defendant regarding an appeal.”              Id.

       Indeed, it is difficult in this case to say that Edwards’s

failure     to    consult         with        Edgerton         was       professionally

unreasonable.         Under the Flores-Ortega standard, Edgerton has

not shown that a rational defendant in his circumstance would

have   wanted    to    appeal     or   “reasonably         demonstrated”         that    he

expressed an interest in appealing.                  While Edgerton argues that

he specifically turned down a plea agreement to appeal, he only

provides conjecture as evidence that such was his reasoning at

the time.

       At the evidentiary hearing, Edgerton did not testify that

he rejected the plea agreement to preserve his appellate rights.

Coupled   with    Edwards’s       uncertainty        as    to     whether      the    plea

agreement   actually       contained      an    appeal         waiver    -    Edgerton’s

argument,   it    “most     likely     contained          an    appeal       waiver,”    is

unpersuasive.         A   defendant      who    specifically         rejects      a     plea

agreement for the purpose of protecting his appellate rights

would know whether the agreement actually contained a waiver.

                                          9
       Further,     Edgerton    fails     to    even   articulate       a   ground     he

would have raised on appeal.                   Although a defendant need not

prove     his     “hypothetical     appeal       might     have   had       merit,”    a

hypothetical ground for appeal is highly relevant to determining

whether Edgerton has been prejudiced or even expressed a desire

to appeal.        Flores-Ortega, 528 U.S. at 485-486.               Edgerton does,

however, posit that had an appeal been filed he may have reaped

the benefits of Blakely and Booker.                While this maybe true, we

are confined to the information known or should have been known

to Edwards at the time.

        At the time of Edgerton’s sentencing, Blakely was before

the Supreme Court but not yet decided and certiorari had not yet

been granted in Booker.           Thus, it is purely speculative that he

would have “reaped the benefits” of these decisions.                         Under the

mandatory guidelines regime Edgerton was facing a significant

term    of    imprisonment.       After    he    received    a    sentence     at     the

bottom       of   his   guideline   range,       Edwards    testified        that     the

defense strategy was to cooperate with the government in the

hopes of receiving a sentence reduction under Federal Rule of

Criminal Procedure 35(b).           This was a reasonable strategy given

Edwards’s assessment that there were no other reasonable grounds

to pursue and Edgerton had expressed an interest in cooperating

with the government.           Edwards also testified that had Edgerton

                                          10
expressed interest in appealing he would have advised him that

an appeal could have jeopardized his chance of receiving a Rule

35 sentence reduction.

       We have held that an attorney must file a notice of appeal

when unequivocally instructed to do so by his client, even if

doing so would be contrary to a plea agreement and harmful to

the client’s interest.            United States v. Poindexter, 492 F.3d

263, 273 (4th Cir. 2007).              Despite Edwards’s concerns, he would

have    still     been   required      to   file     a    notice      of    appeal    -   had

Edgerton unequivocally instructed him to do so.                               Because the

district court’s finding that Edgerton did not do so withstands

clear    error       review,     we     cannot       hold       that       Edwards     acted

“professionally unreasonable,” as a constitutional matter.                                 And

while   it   is      disconcerting     that      Edwards     did     not     consult      with

Edgerton regarding his appellate rights, there is no evidence

demonstrating        Edgerton    was    prejudiced         by   the    failure       or    had

anything to gain from appealing.                     The Supreme Court and this

Court    recognizes      that    “the       better       practice      is    for     counsel

routinely       to     consult    with        the        defendant         regarding      the

possibility of an appeal.”             Flores-Ortega, 528 U.S. at 479.                     But

it is not the standard and, thus, Edgerton’s claim fails.




                                            11
                            III.

For the foregoing reasons, the district court’s judgment is

                                                   AFFIRMED.




                          12
