[DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                   FILED
                                                                  U.S. COURT OF APPEALS
                                       No. 10-13336                 ELEVENTH CIRCUIT
                                   Non-Argument Calendar                MAY 23, 2011
                                 ________________________                JOHN LEY
                                                                          CLERK
                         D.C. Docket Nos. 2:06-cr-00452-RDP-TMP-2,

                                  2:08-cv-08016-RDP -TMP

MACKESE WALKER SPEIGHT,

lllllllllllllllllllll                                               Petitioner-Appellant,

                                            versus

UNITED STATES OF AMERICA,

ll                                                   lllllllllllllllllllRespondent-Appellee.

                                ________________________

                          Appeal from the United States District Court
                             for the Northern District of Alabama
                                 ________________________

                                        (May 23, 2011)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

         Mackese Speight appeals the district court’s order denying her 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct her sentence. Speight pleaded guilty,

without a plea agreement, to one count of conspiracy to commit carjacking, in

violation of 18 U.S.C. § 371, three counts of carjacking, in violation of 18 U.S.C.

§ 2119, and three counts of using a firearm in connection with a crime of violence,

in violation of 18 U.S.C. § 924(c)(1). For these offenses, the district court

sentenced Speight to 819 months’ imprisonment.1 Speight did not file a direct

appeal. Less than one year later, Speight filed a § 2255 motion, arguing that she

received ineffective assistance of counsel when her trial attorney failed to consult

with her concerning the advisability of appealing either her guilty plea or the

sentence imposed. The district court denied her motion, finding that Speight’s

attorney was not deficient in failing to consult with Speight about an appeal

because, inter alia, no rational defendant in Speight’s position would have wanted

to appeal. Speight now appeals the dismissal of her § 2255 motion.2

       We first note that the Speight does not argue that she specifically requested



       1
          Of this sentence, 684 months was the result of mandatory sentences imposed for the
three § 924(c) offenses
       2
           We review de novo a district court’s legal conclusions in a § 2255 proceeding. See
Lynn v. United States, 

, 1232 (11th Cir. 2004) (per curiam). Whether counsel is
ineffective is a mixed question of law and fact that we review de novo. United States v. Bender,

, 1284 (11th Cir. 2002). We will interfere with a credibility determination only if
it is clearly erroneous. United States v. Ramirez-Chilel, 

, 749 (11th Cir. 2002).


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that her counsel file an appeal. Nevertheless, Speight’s counsel was still

constitutionally deficient if he failed in his duty to consult with her regarding an

appeal. That constitutional duty is triggered if either (1) a rational defendant in

Speight’s position would want to appeal or (2) Speight reasonably demonstrated

an interest in appealing. See Roe v. Flores-Ortega, 

, 480 (2000). If

Speight’s attorney did perform deficiently, then to succeed in her ineffective

assistance of counsel claim Speight must show that she was prejudiced by

counsel’s failure to file an appeal, i.e., Speight “must demonstrate that there is a

reasonable probability that, but for counsel’s deficient failure to consult with [her]

about an appeal, [s]he would have timely appealed.” 

      In the “vast majority of cases,” the Supreme Court expects lower courts to

find “that counsel had a duty to consult with the defendant about an appeal.” 

see also Thompson v. United States, 

, 1206 (11th Cir. 2007).

Factors that help us determine whether a rational defendant would want to appeal

include whether there are nonfrivolous grounds for appeal, whether the conviction

follows a guilty plea, whether the defendant received the sentence she bargained

for, and whether the plea agreement waived appellate rights. 

; see also Otero v. United States, 

, 1270 (11th Cir. 2007)

(per curiam).

                                           3
      The government argues that no rational defendant would have wanted an

appeal because 57 years of Speight’s sentence was the result of mandatory

consecutive sentences for the § 924(c)(1) offenses, and because Speight pleaded

guilty, which ordinarily weighs against a defendant because it indicates that the

defendant was interested in “seek[ing] an end to judicial proceedings.”

. We disagree, and find that the district court

clearly erred in finding that no rational defendant would want to appeal Speight’s

guilty plea or 819 month sentence. Speight is a mother of two young children, and

she received a sentence of roughly 68 years for her first criminal episode. Unlike

many defendants, Speight entered a blind guilty plea, thereby preserving her

appellate rights. See 

(holding that “on account of the plea

agreement’s broad appeal waiver, any appeal taken by Otero would have been

frivolous and would have been an appeal that no rational defendant would have

taken”); Devine v. United States, 

, 1288 (11th Cir. 2008) (per

curiam) (finding that there were no nonfrivolous grounds for appeal because the

defendant had pleaded guilty, there was no suggestion the plea was invalid, and

the defendant’s plea contained an appeal waiver).

      Further, Speight had issues of arguable merit to appeal. Specifically, the

court may have committed a Rule 11(b) violation by not clearly advising Speight

                                         4
that the three mandatory minimum sentences for the § 924(c)(1) offenses would be

consecutive to each other. Speight also could have appealed the reasonableness of

the discretionary eleven year portion of her sentence.

      Because a rational defendant in Speight’s position would have sought to

appeal, Speight’s attorney was under a constitutional obligation to consult Speight

about an appeal. See 

. After an evidentiary hearing, the

magistrate judge found that Speight’s attorney did not consult with Speight about

an appeal, and the district court agreed. These decisions were not clearly

erroneous—Speight’s attorney’s only advice to Speight and her family was that

there was nothing to appeal. See 

(“Simply asserting

the view that an appeal would not be successful does not constitute ‘consultation’

in any meaningful sense.”). Instead, adequate consultation requires that an

attorney inform a client about her right to appeal, advise the client about the

advantages and disadvantages of taking an appeal, and make a reasonable effort to

determine whether the client wishes to pursue an appeal. 

Accordingly, Speight’s attorney performed deficiently by not consulting with

Speight about an appeal.

      Finally, we conclude that Speight was prejudiced as a result of counsel

failing to consult with her regarding an appeal. There was a reasonable

                                          5
probability that, but for counsel’s deficient failure to consult, Speight would have

timely appealed. Speight has showed nonfrivolous grounds for appeal, thereby

bolstering her contention that she would have appealed if her attorney had

consulted with her. 

(explaining that “showing

nonfrivolous grounds for appeal may give weight to the contention that the

defendant would have appealed”). Moreover, like the defendant in 

, Speight and her family expressed dissatisfaction with what they

perceived as a lengthy sentence. Had counsel consulted adequately with Speight

about an appeal, there is a reasonable probability that Speight would have

appealed.

       Speight is entitled to pursue an out-of-time appeal of her conviction and

sentence. Accordingly, we reverse the district court’s denial of Speight’s § 2255

motion.3

       REVERSED.




       3
         Speight’s motion to expand the certificate of appealability is DENIED because it was
untimely. See Tompkins v. Moore, 

, 1332 (11th Cir. 1999).

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