Serijo Miquel v. United States , 200 F. App'x 899 ( 2006 )


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  •                                                        [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    OCT 13, 2006
    No. 05-15729               THOMAS K. KAHN
    Non-Argument Calendar              CLERK
    ________________________
    D. C. Docket Nos. 04-01918-CV-T-30-TGW
    03-00124-CR-T-3
    SERIJO MIQUEL,
    a.k.a. Luis Montenegro,
    Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    _________________________
    (October 13, 2006)
    Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
    PER CURIAM:
    Federal prisoner Serijo Miquel, through counsel, appeals the district court’s
    order denying his § 2255 motion to vacate his sentence. We granted a certificate of
    appealability on the following issue only: “[w]hether the district court erred in
    failing to hold an evidentiary hearing on [Miquel]’s claim that he received
    ineffective assistance of counsel based on his attorney’s failure to file a notice of
    appeal, in light of this Court’s decision in Gomez-Diaz v. United States, 
    433 F.3d 788
     (11th Cir. 2005)?” While acknowledging the fact that he entered into a
    written plea agreement with a sentence appeal waiver that waived some but not all
    of his appellate rights, Miquel argues that counsel was constitutionally ineffective
    because he failed to file a direct appeal as requested.
    The government concedes that, pursuant to our decision in Gomez-Diaz, the
    district court erred by finding that Miquel had waived his claim that his counsel
    was ineffective for failing to file a direct appeal. The government acknowledges
    that we should remand this case for the district court to conduct an evidentiary
    hearing to establish whether Miquel’s trial counsel had a duty to file a notice of
    appeal from the final judgment in the district court, pursuant to Roe v. Flores-
    Ortega, 
    528 U.S. 470
    , 
    120 S. Ct. 1029
     (2000).
    A district court’s legal conclusions in a 
    28 U.S.C. § 2255
     proceeding are
    reviewed de novo and its factual findings are reviewed for clear error. Lynn v.
    United States, 
    365 F.3d 1225
    , 1232 (11th Cir. 2004). Whether a defendant
    2
    ultimately has received ineffective assistance of counsel is a mixed question of fact
    and law reviewed de novo. Mincey v. Head, 
    206 F.3d 1106
    , 1142 (11th Cir. 2000).
    The legal standard governing the disposition of ineffective assistance of
    counsel claims is derived from the benchmark case of Strickland v. Washington,
    
    466 U.S. 668
    , 
    104 S. Ct. 2052
     (1984). In Strickland, the Supreme Court
    established a two-prong test for adjudicating ineffective assistance of counsel
    claims. A movant must show that counsel’s performance was deficient and that
    this deficiency prejudiced the defense. 
    Id. at 687
    , 
    104 S. Ct. at 2064
    .
    In Flores-Ortega, the Supreme Court applied the test set forth in Strickland
    and reiterated the long-established rule that a lawyer who disregards specific
    instructions from the defendant to file a notice of appeal acts in a professionally
    unreasonable manner. 
    528 U.S. at 476-77
    , 
    120 S. Ct. at 1034-35
    . The Supreme
    Court further held that, even when a defendant has not specifically instructed his
    counsel to file an appeal, in order to determine whether counsel performed
    deficiently, a court must inquire whether counsel in fact consulted with the
    defendant about an appeal. 
    Id. at 478
    , 
    120 S. Ct. at 1035
    . “If so, the attorney has
    only acted unreasonably if he has ignored the client’s wishes to appeal the case. If
    not, the court must further inquire whether the attorney had an affirmative duty to
    consult.” Gomez-Diaz, 
    433 F.3d at
    792 (citing Flores-Ortega, 
    528 U.S. at 478
    ,
    
    120 S. Ct. at 1035
    ). This duty to consult arises when either: (1) any rational
    3
    defendant would want to appeal; or (2) the defendant reasonably demonstrated an
    interest in appealing. 
    Id.
     (citing Flores-Ortega, 
    528 U.S. at 480
    , 
    120 S. Ct. at 1036
    ). “[T]o show prejudice under 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.”
    Flores-Ortega, 
    528 U.S. at 484
    , 
    120 S. Ct. at 1038
    .
    In Gomez-Diaz, we were presented with a case factually and procedurally
    similar to the instant appeal. In that case, Gomez-Diaz pled guilty pursuant to a
    written plea agreement containing a sentence appeal waiver identical to the waiver
    in the instant case. 
    433 F.3d at 790
    . Gomez-Diaz did not file a direct appeal. 
    Id.
    He filed a § 2255 motion, wherein he alleged, inter alia, that his court-appointed
    counsel failed to file a notice of appeal as he had requested. Id. The district court
    denied the § 2255 motion without an evidentiary hearing, on the basis that Gomez-
    Diaz failed to identify any ground for appeal falling within the exceptions listed in
    the sentence appeal waiver. Id.
    After examining the analytical framework set forth in the Supreme Court’s
    decisions in Strickland and Flores-Ortega, we held that Gomez-Diaz did in fact
    state a claim sufficient to entitle him to an evidentiary hearing in the district court.
    Gomez-Diaz, 
    433 F.3d at 791-93
    . We remanded the case to the district court with
    instructions to conduct an evidentiary hearing to determine whether Gomez-Diaz’s
    4
    initial statements were sufficient to trigger a per se duty to appeal, and if not,
    whether counsel fulfilled his constitutional duty to consult with Gomez-Diaz
    regarding his desire to appeal. 
    Id. at 792
    . We also held that the reasoning of
    Flores-Ortega applied “with equal force” where the defendant has waived many,
    but not all, of his appellate rights. 
    Id. at 793
    .
    Here, as in Gomez-Diaz, we conclude from the record that the district court
    erred by concluding that Miquel had waived his ineffective assistance of counsel
    claim. In denying Miquel’s ineffective-assistance-of-counsel claim asserted in his
    § 2255 motion, the district court found that the claim was barred because it did not
    relate to the negotiation of his plea agreement and did not fall within any of the
    exceptions to his appeal waiver. As conceded by the government, the district court
    erred in making this finding in light of the reasoning set forth in Gomez-Diaz.
    The record shows that the district court did not address this issue of
    whether Miquel actually requested his attorney to file an appeal. This is an
    essential first step in the analysis under Flores-Ortega and Gomez-Diaz.
    Therefore, we vacate the district court’s order and remand this case to the district
    court to conduct an evidentiary hearing.
    VACATED AND REMANDED.
    5
    

Document Info

Docket Number: 05-15729

Citation Numbers: 200 F. App'x 899

Judges: Anderson, Birch, Dubina, Per Curiam

Filed Date: 10/13/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023