Filed: Oct. 28, 2021
Latest Update: Oct. 29, 2021
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 21-1094
GILBERTO ECHEVARRIA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Scott Katz and Scott Katz Law on brief for appellant.
Nathaniel R. Mendell, Acting United States Attorney, and
Donald C. Lockhart, Assistant United States Attorney, on brief for
appellee.
October 28, 2021
THOMPSON, Circuit Judge. Sometime after pleading guilty
to various drug and gun charges, Gilberto Echevarria moved a
district judge under the federal habeas statute to vacate his
conviction and sentence. Of the many claims made in his motion,
the one relevant here is his complaint that plea counsel (as he,
and thus we, call counsel) acted ineffectively by (supposedly)
ignoring his direct order to file a notice of appeal after entry
of judgment. The judge, however, denied his motion following an
evidentiary hearing — though she did grant him a certificate of
appealability ("COA") permitting our review. And we now affirm,
noting up front that because we pen this not-for-publication
opinion principally for the parties — who know the facts, the
procedural history, and the arguments presented — our discussion
will be short (we relate only what is needed to justify our
affirmance).
Crediting plea counsel's account over Echevarria's
(after seeing and hearing them testify), the judge found (emphasis
ours) "that Echevarria did not ask [plea counsel] to file a notice
of appeal." Dissatisfied, Echevarria wants us to stamp the judge's
finding clearly erroneous. But that is a big ask, seeing how he
must convince us that this "finding stinks like 'a 5 week old,
unrefrigerated, dead fish.'" See United States v. Rivera-
Carrasquillo, 933 F.3d 33, 42 (1st Cir. 2019) (quoting Toye v.
O'Donnell (In re O'Donnell),
728 F.3d 41, 46 (1st Cir. 2013)),
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cert. denied, 140 S. Ct. 2691 (2020); see also
id. (explaining, in
"less colorful[]" terms, how a finding is not clearly erroneous
unless it generates "'a strong, unyielding belief' that the judge
stumbled" (emphasis in original and quoting In re O'Donnell, 728
F.3d at 46)). Actually, it only gets harder for him because when
"a judge's finding is based on witness credibility, that finding,
'if not internally inconsistent, can virtually never be clear
error.'" See id. (emphasis in original and quoting Anderson v.
City of Bessemer,
470 U.S. 564, 575 (1985)).
And measured against this standard, Echevarria's
argument stands no chance. He, for example, does not counter the
government's point that he makes "no effort" to show any internal
inconsistencies (he filed no reply brief). What he does instead
(as the government notes, without contradiction) is urge us to re-
sift the evidence by focusing on factors favoring his position,
like (for instance) how plea counsel had trouble recalling the
details of certain peripheral subjects (e.g., the arraignment date
in this case), how plea counsel admitted not filing a notice of
appeal in an unrelated criminal matter, and how it is more likely
that he (Echevarria) rather than plea counsel would recall events
in his own case. But such a re-weighing/second-guessing is
verboten under the highly deferential clear-error standard. See
United States v. Wetmore, 812 F.3d 245, 249 (1st Cir. 2016). See
generally Rivera-Carrasquillo, 933 F.3d at 42 (stressing that even
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a showing "that [a] finding is 'probably wrong'" is not enough on
clear-error review (emphasis in original and quoting In re
O'Donnell, 728 F.3d at 46)).
Perhaps sensing this vulnerability, Echevarria debuts a
two-part argument here. We say "debuts" because (pertinently for
our purposes) Echevarria's COA request focused on the judge's
finding that he never told plea counsel to file a notice of appeal.
Anyway, his new theory is that even if the judge did not clearly
err in so finding, (1) he "reasonably demonstrated" that he wished
to appeal, thus triggering a "duty" on plea counsel to talk to him
about the pros and cons of an appeal — (2) a duty plea counsel
"failed to fulfill." But because (as the government writes, again
without contradiction) the judge's COA could not have authorized
him to press an issue on appeal that he concededly did not raise
below, this argument goes nowhere (he offers us no good reason why
we should hold differently). See, e.g., Shea v. United States,
976 F.3d 63, 82 (1st Cir. 2020); Peralta v. United States,
597
F.3d 74, 83-84 (1st Cir. 2010).
Given our ruling, we need not referee any other disputes
between the parties. And we end with this word (a variation of
one used above):
Affirmed.
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