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Devine v. United States
Citations: 520 F.3d 1286; 2008 U.S. App. LEXIS 5839; 2008 WL 731748Docket: 07-11206
Court: Court of Appeals for the Eleventh Circuit; March 20, 2008; Federal Appellate Court
Original Court Document: View Document
William R. Devine, a federal prisoner, is appealing the denial of his 28 U.S.C. § 2255 motion, which sought to vacate, set aside, or correct his sentence. The appeal centers on whether the district court erred in determining that Devine's attorney was not deficient for failing to file a direct appeal. Devine contends that his counsel did not sufficiently consult him about his appellate rights and that he expressed an interest in appealing, which imposed a duty on counsel to discuss this with him. He claims that the lack of consultation prejudiced him. The court reviews the district court's legal conclusions de novo and factual findings for clear error. Claims of ineffective assistance of counsel are also reviewed de novo. According to Supreme Court precedent in Roe v. Flores-Ortega, the effectiveness of counsel regarding appeal issues is evaluated under the Strickland standard, which requires showing that counsel's performance was below an objective standard of reasonableness and that this deficiency prejudiced the defendant. Specifically, if a client explicitly requests an appeal, failure to file it is deemed professionally unreasonable. Additionally, even if there is no explicit request, counsel generally has a duty to consult the client about the possibility of an appeal, particularly when there are nonfrivolous grounds for appeal or indications from the client that they wish to appeal. The district court found, based on credibility determinations, that Devine did not ask his attorney to file an appeal. However, the assessment must also consider whether counsel consulted with Devine about an appeal, particularly in light of any reasons to believe that a rational defendant would desire to appeal or if Devine had demonstrated an interest in doing so. The Supreme Court's definition of 'consult' requires that defense counsel advise the defendant on the benefits and drawbacks of appealing and make reasonable efforts to ascertain the defendant's desires regarding an appeal. In the case involving Devine, although counsel and Devine discussed the possibility of an appeal immediately after sentencing, it is assumed for the sake of argument that counsel did not sufficiently consult with him. The critical issue is whether counsel had an obligation to consult under the specific circumstances. Applying a two-prong test from prior case law, the district court determined that a rational defendant in Devine's position would not want to appeal due to the absence of nonfrivolous grounds—Devine had pled guilty, and his plea included an appeal waiver. The sentence, being at the lower end of the guidelines, was not illegal, leaving no viable grounds for an appeal. On the second prong, the district court found, based on an evidentiary hearing, that Devine did not adequately express an interest in appealing. The attorney indicated that any potential appeal would be futile, which Devine understood. Additionally, Devine did not raise the issue of an appeal when communicating with counsel’s secretary. The district court credited the attorney's testimony and deemed Devine's lack of expression of interest as significant. Consequently, the court concluded that counsel did not have an affirmative duty to further consult with Devine regarding an appeal, distinguishing this case from a prior case where the defendant had explicitly expressed an interest in appealing. The district court in Thompson did not find that Thompson failed to show a reasonable interest in appealing, and the appellate court merely concluded, without detailed review, that Thompson had expressed such an interest. In contrast, the current case resembles Otero rather than Thompson. Devine's request for oral argument is denied, and the district court's judgment is affirmed. Thompson had no appeal waiver and clearly communicated dissatisfaction with his sentence, which was harsher than his co-defendants'. The appellate court determined that a rational defendant would likely want to appeal under those circumstances, highlighting the distinction from the current case where no similar findings were made.