Melvin Velez-Santos v. United States , 469 F. App'x 809 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14091 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 10, 2012
________________________ JOHN LEY
CLERK
D.C. Docket Nos. 8:11-cv-00449-RAL-TBM; 8:07-cr-00368-RAL-TBM-7
MELVIN VELEZ-SANTOS,
llllllllllllllllllllllllllllllllllllllll Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 10, 2012)
Before CARNES, BARKETT, and ANDERSON, Circuit Judges.
PER CURIAM:
Melvin Velez-Santos pleaded guilty to, and was convicted of, one count of
conspiracy to commit offenses against the United States, see 18 U.S.C. § 371, and
two counts of making a false statement to a federally licensed firearm dealer, see
18 U.S.C. §§ 922(a)(6), 924. The district court sentenced him to 240 months in
prison, and Velez-Santos timely filed a notice of appeal. His lawyer later filed a
motion to dismiss the appeal with prejudice, which we granted.
Velez-Santos then filed a 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his prison sentence, contending that his lawyer was unconstitutionally
ineffective because he filed a motion to dismiss the appeal without authorization
from Velez-Santos. The district court held an evidentiary hearing, at which Velez-
Santos and his lawyer testified. The court found that the lawyer “testified quite
clearly that . . . he did have [Velez-Santos’] authority to dismiss the appeal prior to
filing of the motion with the Eleventh Circuit.” Crediting the lawyer’s testimony,
the court found that Velez-Santos was “in agreement to dismiss his appeal,” and it
denied the § 2255 motion. The court, however, granted a certificate of
appealability on the following issue: “[W]hether appellate counsel rendered
ineffective assistance of counsel by moving to dismiss [Velez-Santos’] direct
criminal appeal without the authorization of [Velez-Santos].”
We review as a mixed question of law and fact the district court’s denial of
a § 2255 motion. So we review only for clear error the court’s factfindings, but
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we review de novo the court’s application of the law to those facts. McKay v.
United States, 657 F.3d 1190, 1195 (11th Cir. 2011). A district court’s
factfindings are “clearly erroneous only if the record lacks substantial evidence to
support [them].” Johnson v. Hamrick, 296 F.3d 1065, 1074 (11th Cir. 2002)
(quotation marks omitted).
Substantial evidence supports the district court’s finding that Velez-Santos’
lawyer had authorization from Velez-Santos to file the motion to dismiss the
appeal. The lawyer testified that he had that authorization, and the court credited
the lawyer’s testimony. We give substantial deference to that credibility
determination. See Crystal Entm’t & Filmworks, Inc. v. Jurado, 643 F.3d 1313,
1322 (11th Cir. 2011). Also, Velez-Santos did not respond to a letter from this
Court asking him if he had any objections to the motion to dismiss the appeal,
even though he testified that he had received that letter. Because Velez-Santos’ §
2255 motion is based on his lawyer not having authorization to file the motion to
dismiss the appeal, and because the district court found that the lawyer did have
that authorization, the court did not err in dismissing the § 2255 motion.
AFFIRMED.
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