[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

F e b r u a r y 14, 2006

N o . 05-13161 T H O M A S K. KAHN

N o n - A r g u m e n t Calendar CLERK

D . C. Docket Nos.

04-22123-CV-DLG

0 3 -2 0 2 6 0 -C R -D L G

R A F A E L DEJESUS MEDINA,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

A p p e al from the United States District Court

fo r the Southern District of Florida

(F eb ru a ry 14, 2006)

B efo re ANDERSON, BIRCH and FAY, Circuit Judges.

P E R CURIAM:

R afael DeJesus Medina, a federal prisoner, appeals through counsel the d is tr ic t court's denial of his motion to vacate, set aside, or correct sentence, filed p u rsu an t to 28 U.S.C. § 2255.1 Medina filed his § 2255 motion on August 23, 2 0 0 4 ; thus, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), P u b .L . No. 104-132, 110 Stat. 1214 (1996), governs this appeal. Medina argues on ap p eal that he was denied his right to effective assistance of counsel under the S ix th Amendment when his trial counsel failed to file a notice of appeal ("NOA").

For the reasons set forth more fully below, we affirm.

On August 23, 2004, Medina, who is serving a 70-month sentence imposed p u r su a n t to his guilty plea for conspiracy to import 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 960(b)(2) and 963, filed the instant § 2255 motion.

Medina argued in this § 2255 motion that his trial counsel, Scott Saul, provided in ef fe ctiv e assistance of counsel by failing to file either a NOA on Medina's b eh alf, or to consult with Medina during the ten-day period that Medina had for filin g an NOA following the court's entry of his judgment of conviction on August 2 2 , 2003.2 The government responded that Medina had not contended in his 1 While the same counsel who is representing Medina in this appeal represented him in his § 2255 motion, he is not the same counsel as in the underlying criminal proceedings.

2 Medina also raised in his § 2255 motion, and the court ultimately rejected, constitutional challenges to his sentence based upon the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), that the "statutory maximum" is "not the maximum sentence a judge may impose after finding additional § 2255 motion that he had asked Saul to file a NOA. Nevertheless, the government co n ced ed that an evidentiary hearing would be necessary for the court to resolve th is claim.

The magistrate judge subsequently conducted an evidentiary hearing, during w h ic h Medina and Saul were the only witnesses to testify. Medina, who was a 41-year-old citizen of the Dominican Republic and had an eleventh-grade e d u c a tio n , testified that he had lived in the United States since 1981. After M ed in a's arrest on the instant offense, the court appointed him a public defender.

Medina's brother, however, subsequently hired Saul to represent Medina, and M e d in a plead guilty. Prior to sentencing, Medina and Saul met, discussed M ed in a's presentence investigation report ("PSI"), and filed their objections to it, in clu d in g objecting to (1) a two-level enhancement of his offense level for the p o ssessio n of a firearm during the commission of a crime, and (2) the denial of "safety-v alv e relief." M ed in a further testified that, immediately after the court overruled these o b jectio n s and imposed sentence, and while Medina was still in the courtroom, S au l informed Medina that they would appeal his sentence and that they would facts, but the maximum he may impose without any additional findings." However, our review is limited to the claim of ineffective assistance of counsel that is contained in the district court's certificate of appealability ("COA"). See Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (holding that appellate review is limited to the issues specified in the COA).

"see each other `tomorrow.'" Medina, in turn, confirmed that he wished to appeal.

However, even after Medina and his family repeatedly attempted to contact Saul, S au l never met with Medina or filed an appeal. Medina contended that, within a few months of sentencing, when Medina's brother finally was able to contact Saul b y telephone, Saul informed Medina's brother that Saul had not filed an appeal b ecau se "it was not worth it." Medina also testified that he did not agree with his sen ten ce and that he still wished to appeal it.

O n cross-examination, Medina conceded that his brother hired Saul to p r o v id e him with advise regarding his "legal options, with regard to going to trial o r pleading guilty," and that, prior to sentencing, Medina met with Saul and was ab le to contact him by telephone from the federal detention center. Medina also ag reed that the district court, after imposing sentence, verified that Medina u n d ersto o d that (1) he had a right to appeal his sentence; (2) his NOA would have to be filed, if at all, within ten days of the imposition of sentence; and (3) the court w o u ld appoint him appellate counsel if he could no longer afford counsel.

Additionally, Medina clarified that, although he always had at least some d ifficu lty contacting Saul, he could contact his brother, and that neither he nor his b r o th e r attempted to retain alternative appellate counsel or inform the district court ab o u t their difficulty contacting Saul. In explaining why he did not inform the co u rt of his inability to contact Saul, Medina stated that he did not know how to raise such a complaint. Moreover, on redirect-examination, he stated that (1) he h ad been detained in a federal detention center since his original arrest; (2) the calls h e had made to his counsel from this center had been paid, instead of collect calls; an d (3) he had no prior experiences with filing appeals. Medina's counsel for his § 2255 motion also introduced a copy of Saul's notice of substitution of counsel, w h ic h did not specify that the parties had agreed that his representation was limited fo r trial purposes.

S a u l next testified, stating that he was a solo practitioner, had been p racticin g since 1987, and primarily handled criminal-trial work. In April 2003, M ed in a's brother hired Saul to represent Medina in the instant case. Prior to M e d in a 's plea of guilty, Saul met with him on a weekly basis, and Medina never co m p lain ed to him that he had problems contacting him.3 Saul also stated that, alth o u g h he did not have his standard retainer form with him at the hearing, (1) this fo rm provided that he never handled appeals or other post-conviction matters, and (2 ) he would have explained this form to Medina's brother when he was retained. W h en the government asked Saul whether he spoke with Medina following sen ten cin g , Saul replied that he could not remember. On cross-examination, Saul also conceded that he neither withdrew as counsel of record, nor had Medina sign a w a iv e r of his right to appeal. Saul, however, testified that he remembered receiv in g phone calls from Medina's family "all the time" and that this family n ev er complained about having trouble reaching him. Saul also stated that he did n o t remember if Medina ever expressed to him that he wished to appeal, but that he w a s sure that Medina would have wanted to try to obtain the lowest sentence p o s s ib le .

Additionally, Saul testified that: (1) he did not inform either Medina or his f am ily that he would file a NOA on Medina's behalf; (2) if he and Medina had d iscu ssed an appeal, he would have advised Medina to hire appellate counsel and file a NOA within ten days; and (3) Medina's brother was always aware that Saul d id not handle appeals. When questioned specifically whether he normally files N O A s , Saul stated that he files them after trials and that he had been filing them d u rin g the six months prior to this instant evidentiary hearing to preserve any B lak ely claims, but that he, otherwise, normally only informs clients of his opinion o f their chances on appeal, the cost of an appeal, and the names of attorneys who h an d le appeals. At some point post-sentencing, Saul explained to Medina's b ro th er that he did not think Medina would be successful on appeal. Saul also ex p lain ed that, although he has a "high volume practice" and is frequently in court, h e has four phone lines and advises clients to call him directly via cellular phone after 8:00 p.m.

Based on this testimony, Medina's counsel argued that the government had n o t offered evidence rebutting Medina's testimony that he informed Saul im m ed iately after sentencing that he wished to appeal and that Saul subsequently h ad not spoken with him. He stated that, although Saul had testified that he went o v e r his retainer agreement with Medina's brother, the record did not reflect that M ed in a, himself, ever saw this agreement. He also contended that, whether or not M ed in a's appeal had merit, he wished to appeal, and Saul either had an obligation to file a NOA on his behalf or move the court for leave to withdraw his rep resen tatio n . As relief, Medina's counsel requested that the court vacate M ed in a's sentence and then reimpose it, so that Medina could file a timely NOA.

The government responded that, although Saul had testified that he could not rem em b er if he had a conversation with Medina post-sentencing, this lack of m em o ry likely was attributable to (1) the fact that nothing unusual had occurred, an d (2) Saul normally advised clients that he does not handle appeals. The g o v er n m en t also argued that the court should consider in weighing Medina's cred ib ility that he had not sought to file a belated appeal until a significant time p assed and after the Supreme Court had decided Blakely.

The magistrate judge recommended that Medina's § 2255 motion be denied.

In doing so, the magistrate acknowledged that Medina was arguing in support of h is ineffectiveness claim that he (1) advised Saul immediately following sen ten cin g that he wished to appeal, (2) subsequently was unable to contact Saul, a n d (3) wished leave from the court to file a belated appeal. The magistrate, h o w e v e r, determined that Medina's claim of ineffective assistance of counsel was n o t meritorious because he was aware of his right to appeal and chose not to do so.

The magistrate further explained that neither party disputed that, at s en te n c in g , (1) the district court advised Medina of his right to appeal, (2) the court ex p lain ed that a NOA had to be filed, if at all, within ten days of the entry of the ju d g m en t of conviction, and (3) Medina acknowledged that he understood this a d v ic e. The magistrate discussed that, although Medina knew that he only had ten d a y s to file a NOA and easily could have contacted his brother, he neither asked h is brother to hire counsel for an appeal, nor complained to the district court about h is inability to contact Saul. Moreover, the magistrate found "highly credible" S au l's testimony that: (1) he never handles appeals or post-conviction procedures; (2 ) he made this practice clear to Medina; (3) he never promised to file a NOA on M e d in a 's behalf; (4) he explained to Medina's brother that he believed any appeal h a d little, if any, merit; (5) he always could be reached directly by telephone after 8 :0 0 p.m.; and (6) although he received frequent calls from Medina's family, he d id not remember receiving post-sentencing calls from Medina.

Based on this evidence, the magistrate determined that Medina was fully aw are of his right to appeal, along with the fact that a NOA had to be filed within te n days from the imposition of sentence. The magistrate also determined that M e d in a (1) was aware of the fact that his counsel did not handle appeals, (2) had th e opportunity to contact his brother, whom he easily could have reached, to retain ap p ellate counsel, if he truly had wished to timely appeal his sentencing issues, and (3 ) only expressed a desire to appeal after the Supreme Court issued its decision in B lak ely. The magistrate, thus, concluded that Medina could have, and should h av e, obtained appellate counsel if he had wished to timely appeal and that he co u ld not now claim ineffective assistance of counsel.

In written objections to this report, Medina argued that the record reflected th a t he requested that his counsel appeal his sentence. Medina also contended that w e have determined that, when a criminal defendant requests that his trial counsel file a NOA on his behalf, the failure of counsel to comply constitutes ineffective assistan ce of counsel, whether or not the defendant shows that he would have s u c ce ed e d on appeal. Thus, Medina concluded that, even if he only had retained S au l to handle his trial proceedings, Saul had a duty to file a NOA to preserve M ed in a's right to appeal.

O n order of the court, the government filed a response to these objections, e x p la in in g that, although Medina testified that he had advised Saul that he wished to appeal his sentence, the magistrate's recommendation denying his in e f fe ctiv e n e s s claim was based on the magistrate's finding that this testimony was n o t credible. The government contended that this credibility finding was supported b y (1) the fact that Medina did not raise this ineffectiveness claim and seek the o p p o rtu n ity to file a belated appeal until almost ten months after sentencing and af ter the Supreme Court issued its decision in Blakely, and (2) the magistrate's fin d in g as "highly credible" Saul's testimony that he never does appellate work and M ed in a never asked him to file a NOA. The government, thus, concluded that our caselaw requiring defense counsel to file a NOA when requested by the defendant w as inapplicable. Moreover, the government contended that, although the S u p rem e Court identified in Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S.Ct.

1 0 2 9 , 1036, 145 L.Ed.2d 985 (2000), circumstances wherein counsel's failure to f ile a NOA will amount to ineffective assistance of counsel, regardless of whether a request to do so was made, none of these circumstances existed in the instant c as e.

After considering the magistrate's recommendation and conducting a de n o v o review, the court summarily adopted this recommendation and denied M ed in a's § 2255 motion. However, on Medina's motion, the magistrate r ec o m m e n d e d that the court grant a COA on the sole claim of ineffective assistance o f counsel. The court, in turn, adopted this recommendation.

As discussed above, Medina argues on appeal that Saul provided ineffective assistan ce of counsel by failing to file a NOA on Medina's behalf after Medina co m m u n icated to Saul his desire to appeal his sentence. Medina alternatively ar g u es that, even if we were to conclude that he did not make this request, Saul's p e r fo r m a n c e was deficient because a reasonable counsel would have consulted w ith his client about this right to appeal when it was clear that his client wished to ap p eal. Medina contends that this deficient performance prejudiced him because th e record reflects that, but for this deficient performance, he would have timely ap p ealed . Finally, Medina asserts that the district court, in adopting the m ag istrate's recommendation, erroneously relied on (1) the fact that Medina did n o t ask his family to retain another attorney to file the NOA, and (2) its mistaken d eterm in atio n that Medina knew that Saul did not handle appeals. W h e n reviewing the district court's denial of a § 2255 motion, we review q u e stio n s of law de novo and findings of fact for clear error. Varela v. United S tates, 400 F.3d 864, 867 n.3 (11th Cir.), cert. denied, 126 S.Ct. 312 (2005).

"Whether a criminal defendant has received effective assistance of counsel is a m ix e d question of fact and law." Mincey v. Head, 206 F.3d 1106, 1142 (11th Cir. 2 0 0 0 ). We review for clear error questions of fact underlying the claim and r ev ie w s de novo the district court's decision on the ultimate issue of "whether co u n sel's performance passed constitutional muster." Id.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ( 1 9 8 4 ) , the Supreme Court established a two-prong test for deciding whether a d efen d an t has received ineffective assistance of counsel. The defendant must e sta b lis h that (1) his attorney's performance failed to meet "an objective standard o f reasonableness," id. at 688, 104 S.Ct. at 2064; and (2) the defendant's rights w ere prejudiced as a result of his attorney's substandard performance, id. at 693, 1 0 4 S.Ct. at 2067. Moreover, the Supreme Court subsequently determined that this tw o -p art test applies to claims--such as here--that a defendant lost his right to ap p eal because of his attorney's failure to file an appeal on his behalf. Roe, 528 U .S . at 476-77, 120 S.Ct. at 1034. A s a preliminary matter, and as both parties concede, we have long held, and th e Supreme Court determined in Roe, that an attorney's failure to file an appeal a fte r a defendant requests that he or she do so normally should result in the court g ran tin g him an out-of-time appeal, even absent the defendant showing that he or s h e would have had any viable grounds for appeal. See id. at 477, 120 S.Ct. at 1 0 3 5 ; see also Martin v. United States, 81 F.3d 1083, 1084 (11th Cir. 1996). In G o m ez-D iaz v. United States, No. 04-11105 (11th Cir. Dec. 20, 2005), we recently ex am in ed a district court's denial of a claim of ineffective assistance of counsel, w h ic h was based on Gomez-Diaz's contention that his appointed counsel had failed to file a NOA as requested. See id., manuscript op. at 3. We determined, am o n g other things, that, despite Gomez-Diaz's waiver of some of his appellate r ig h ts , remand was necessary for the district court to conduct an evidentiary h earin g and determine whether Gomez-Diaz's initial statement of his desire to ap p eal was sufficient to trigger his counsel's per se duty to appeal. See id. at 9.

We also explained that, if, on remand, the district court found either that GomezD iaz's attorney had acted contrary to his client's wishes or failed to determine his clien t's wishes, the court should presume prejudice and grant Gomez-Diaz an outo f-tim e appeal. See id. at 10. E x am in in g the record here, Medina testified during the evidentiary hearing th at he expressed to Saul his desire to appeal his sentence. On the other hand, alth o u g h Saul testified that did not remember if he had any conversations with M e d in a post-sentencing, Saul confirmed that he never handles appeals or other p o s t- co n v ic tio n matters and that, prior to the past six months, he only had informed c lie n ts who plead guilty of his opinion of their chances on appeal, the cost of an ap p eal, and the names of attorneys who handle appeals. The district court, in a d o p tin g the magistrate's factual findings, and in at least implicitly finding more cred ib le Saul's testimony, determined that Medina only had expressed a desire to ap p eal after the Supreme Court issued its decision in Blakely. Moreover, we have e x p la in e d that the determination of the credibility of a testifying attorney during an ev id en tiary hearing on a claim of ineffective assistance of counsel is "within the p ro v in ce of the district court, which had the opportunity to observe and study the w itn ess." See Carr v. Schofield, 364 F.3d 1246, 1264-65 (11th Cir.), cert. denied, 1 2 5 S.Ct. 815 (2004). Thus, unlike the facts in Gomez-Diaz, the court in the in stan t case, after conducting an evidentiary hearing, did not find credible M ed in a's testimony that he asked Saul to file a NOA on his behalf. Thus c o n c lu d in g that the per se duty to appeal outlined in Roe, Martin, and Gomez-Diaz w a s not applicable. In addition to concluding that the two-part Strickland test applies to a claim th at a defendant lost his right to appeal because of ineffective assistance of counsel, th e Supreme Court in Roe explained that, where a defendant neither instructs co u n sel to file an appeal, nor asks that an appeal not be taken, the relevant question in determining whether counsel has performed deficiently by not filing a NOA is "w h eth er counsel in fact consulted with the defendant about an appeal." Roe, 528 U .S . at 478, 120 S.Ct. at 1035. The Supreme Court explained that, if counsel has n o t consulted with the defendant, the court must determine "whether counsel's failu re to consult with the defendant itself constitutes deficient performance." Id.

In making this determination, the Roe Court rejected a "bright-line rule that co u n sel must always consult with the defendant regarding an appeal," and, instead, in stru cted as follows: [C ]o u n sel has a constitutionally imposed duty to consult with the d e f en d a n t about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there a re nonfrivolous grounds for appeal), or (2) that this particular d e f en d a n t reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into acco u n t all the information counsel knew or should have known.

Id. at 480, 120 S.Ct. at 1036.

In addressing the prejudice-prong of the Strickland test, the Roe Court ex p lain ed that, "to show prejudice in these circumstances, a defendant must d em o n strate that there is a reasonable probability that, but for counsel's deficient f ailu r e to consult with him about an appeal, he would have timely appealed. Id. at 4 8 4 , 120 S.Ct. at 1038-39. In satisfying this burden of proof, the defendant need n o t "specify the points he would raise were his right to appeal reinstated." Id. at 4 8 6 , 120 S.Ct. at 1039-40. On the other hand, although the defendant may prove d e f ic ie n t performance by showing that he demonstrated to counsel his interest in an a p p e a l, he cannot rely on this evidence solely to establish that, "had [he] received reaso n ab le advice from counsel about the appeal, he would have instructed his co u n sel to file an appeal." Id. at 486, 120 S.Ct. at 1039.

Medina is citing, as evidence of deficient performance, to his own testimony th at he had (1) expressed dissatisfaction about his sentence to his counsel and (2 ) preserved objections to sentencing rulings that he claimed he wished to c h a lle n g e on appeal. Moreover, he argues, Saul conceded that he was sure that M ed in a would have wanted to seek the lowest possible sentence on appeal. On the o th e r hand, the court noted Saul's testimony that post-sentencing he had informed M ed in a's brother that he did not think there were any issues that had merit.

Regardless, we need not determine whether Saul's failure to consult with M ed in a constituted deficient performance because Medina has failed to establish th e prejudice-prong in Roe, that is, that there is a reasonable probability that, but fo r counsel's deficient failure to consult with him about an appeal, he would have tim ely appealed. See Roe, 528 U.S. at 484, 120 S.Ct. at 1038-39. Although M e d in a has now testified that he wished to timely appeal his sentence and has cited to issues that he believes would have been meritorious, or at least arguable, on ap p eal, he has conceded that he understood the district court's advice that he had to file an appeal, if at all, within ten days of the imposition of sentence. Medina also a g r ee d that the court informed him that, if he could not afford counsel, the court w o u ld appoint him appellate counsel.

Furthermore, whether or not Medina had trouble contacting Saul postsen ten cin g , he has conceded that he always could contact his brother and failed to e x p la in why he could not have asked his brother either to hire alternative counsel o r notify the court of his desire to appeal. Indeed, Medina did not file the instant § 2255 motion, arguing ineffective assistance of counsel and seeking to file a b e la te d direct appeal, until August 23, 2004, more than a year after the court en tered his judgment of conviction on August 22, 2003. Additionally, as the d is tr ic t court observed, Medina's filing of this § 2255 motion occurred only after th e Supreme Court issued its decision in Blakely, which Medina also relied upon in seek in g § 2255 relief, and which we have concluded is not applicable to cases on co llateral review. See Varela, 400 F.3d at 866-68. Thus, after examining M ed in a's ineffectiveness claim in light of all of the evidence, he has failed to estab lish prejudice. See Strickland, 466 U.S. at 695, 104 S.Ct. at 2069 (explaining th at a court hearing an ineffectiveness claim must consider the totality of the e v id e n c e ) .

Accordingly, we conclude that the district court did not err in denying M ed in a's claim of ineffective assistance of trial counsel. We, therefore, affirm.

AFFIRMED.

3 Saul explained that, although English was Medina's second language, Medina could speak conversational English. Medina also agreed that, when the court advised him of his appellate rights during sentencing, he had an interpreter present.