Filed: Jun. 21, 2010
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-7553 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DINARLDO MATTHEWS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:00-cr-00213-RGD) Argued: May 11, 2010 Decided: June 21, 2010 Before MOTZ, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Arenda Lauretta Allen, OFFICE
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-7553 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DINARLDO MATTHEWS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:00-cr-00213-RGD) Argued: May 11, 2010 Decided: June 21, 2010 Before MOTZ, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Arenda Lauretta Allen, OFFICE O..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7553
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DINARLDO MATTHEWS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:00-cr-00213-RGD)
Argued: May 11, 2010 Decided: June 21, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Arenda Lauretta Allen, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellant. Richard Daniel
Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Alexandria, Virginia, Kevin M.
Comstock, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dinarldo Matthews appeals from an order of the district
court denying his 28 U.S.C. § 2255 (2006) motion. Matthews
contends that his trial counsel provided constitutionally
ineffective representation in failing either to file a notice of
appeal or consult with Matthews regarding an appeal after
Matthews had pled guilty to drug charges. We affirm.
I.
Matthews pled guilty to one count of conspiracy to
distribute and possess with intent to distribute heroin and
cocaine. Matthews’s plea agreement included an explicit waiver
of his right to appeal. In exchange, the Government reduced the
drug quantity for which Matthews was responsible and requested a
smaller enhancement for Matthews’s leadership role in the
conspiracy. In accord with this agreement, Matthews’s advisory
sentencing range under the United States Sentencing Guidelines
(“Guidelines”) decreased from an initial range of 324 to 405
months’ imprisonment to a new range of 210 to 262 months.
Matthews ultimately received a prison sentence of 225 months.
The district court then informed Matthews that notwithstanding
his waiver of his right to appeal, he could still file a notice
of appeal. Matthews told the court that he did not wish to
appeal.
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After his appeal period had expired, Matthews requested an
extension of time in which to file an appeal. The district
court denied this request. Matthews then filed this § 2255
motion, alleging that after the district judge left the
courtroom at sentencing, Matthews instructed his trial counsel
to file a notice of appeal. The district court denied
Matthews’s motion without holding an evidentiary hearing. This
court granted a certificate of appealability, reversed, and
remanded with instructions to hold a hearing. See United States
v. Matthews, 239 F. App’x 806, 807 (4th Cir. 2007).
At the hearing, Matthews and his three sisters testified
that, after being sentenced, Matthews told his trial counsel
that he wished to appeal. Matthews further testified that prior
to sentencing, he had expected to receive a sentence of ten
years based on his plea agreement, and not a sentence of 225
months. Matthews and his sisters testified that they tried and
failed to reach trial counsel to instruct him to file a notice
of appeal.
Matthews’s trial counsel testified to the contrary. He
explained that he had seventeen years of experience in
representing criminal defendants, and that he had, in the past,
filed notices of appeal for clients who had waived their right
to appeal. Counsel further testified that his practice was to
keep notes and records of all court appearances, meetings, and
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telephone calls with clients. These notes contained no mention
of Matthews’s request to appeal, and trial counsel, relying on
the notes, testified that Matthews had not requested him to file
a notice of appeal. Trial counsel also testified that had
Matthews instructed him to appeal, he would have done so.
Finally, counsel testified, again contrary to Matthews’s
assertion that counsel had been unreachable, that he had met
with Matthews in prison several days after sentencing and that
Matthews did not mention an appeal during that meeting.
The district court found that Matthews never requested that
his trial counsel file a notice of appeal on his behalf. The
court credited counsel’s testimony given his years of experience
and his copious notes detailing his interactions with Matthews.
The court discredited the testimony of Matthews and his sisters
because the sisters had difficulty remembering other details
about the sentencing proceeding, and because it would have been
illogical for Matthews to seek to appeal based both on his
nearly contemporaneous statement to the court that he did not
wish to appeal and on the terms of his plea agreement.
Matthews again appealed the district court’s denial of his
§ 2255 motion. Noting that the conflict in the evidence
rendered the district court’s conclusion “debatable,” we granted
a certificate of appealability on the issue of “[w]hether the
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district court committed clear error in finding that Matthews
did not ask his attorney to file an appeal.”
II.
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the
Supreme Court established that defendants have a Sixth Amendment
right to “reasonably effective” legal assistance. For a
defendant to prove a violation of this right, he must show that
his attorney’s representation “fell below an objective standard
of reasonableness,”
id. at 688, and that this failure prejudiced
him,
id. at 694.
On appeal, Matthews argues that his trial counsel was
ineffective. He contends both that the district court clearly
erred in finding that he did not request counsel to file a
notice of appeal, and also that even if he did not instruct
counsel to appeal, counsel was ineffective for failing to
consult Matthews about whether Matthews wanted to appeal. We
consider these contentions in turn.
A.
When counsel fails to file a notice of appeal after
receiving specific instructions from a defendant to do so, this
constitutes a violation of the defendant’s Sixth Amendment
rights, regardless of whether the defendant is likely to prevail
on appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).
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Thus, the sole question necessary to resolve Matthews’s first
contention is whether he did, in fact, instruct counsel to file
a notice of appeal.
We reverse a district court’s factual finding that a
defendant did not instruct trial counsel to file a notice of
appeal only if, after giving “due regard to the trial court’s
opportunity to judge the witnesses’ credibility,” we determine
that the district court’s finding is “clearly erroneous.” Fed.
R. Civ. P. 52(a)(6). “[A] finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Anderson v. City
of Bessemer City, 470 U.S. 564, 573 (1985) (internal quotation
marks omitted).
A district judge’s credibility determinations deserve “even
greater deference” than other factual findings. Id. at 575.
When, as here, “a trial judge’s finding is based on his decision
to credit the testimony of one of two or more witnesses, each of
whom has told a coherent and facially plausible story that is
not contradicted by extrinsic evidence, that finding, if not
internally inconsistent, can virtually never be clear error.”
Id.
Under this deferential standard, we cannot disturb the
district court’s finding that Matthews failed to request an
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appeal. The district court credited an experienced and
accomplished defense attorney who kept detailed written notes,
rather than Matthews and his sisters, who offered self-serving,
illogical, and incomplete testimony.
Moreover, no extrinsic evidence contradicted counsel’s
account. Indeed, all of the evidence supported it: Matthews had
pled guilty, received a much lower sentence than he would have
absent his plea agreement, and proclaimed in open court that he
did not wish to appeal. Thus, the district court’s finding that
Matthews did not, minutes later, instruct his trial counsel to
file a notice of appeal is not clearly erroneous.
B.
Matthews also argues that his counsel unreasonably failed
to consult with him regarding an appeal. * When the defendant
fails to give his attorney a clear instruction to appeal, the
Supreme Court had held that a reviewing court must decide
whether counsel nevertheless had a duty to consult with his
*
The Government contends that this issue falls outside the
scope of the certificate of appealability. However, as the
Supreme Court noted in Flores-Ortega, whether counsel consulted
with the defendant about appeal is an “antecedent” question that
must be considered before a court can resolve whether counsel’s
failure to file a notice of appeal was reasonable under the
circumstances. 528 U.S. at 478. Prior to oral argument, we
ordered supplemental briefing on this issue. Because the
parties have thus had an opportunity to brief and argue
counsel’s alleged duty to consult, the Government suffers no
prejudice by having to address this antecedent issue.
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client regarding an appeal. The Court has emphasized that “in
the vast majority of cases,” counsel has such a duty. Flores-
Ortega, 528 U.S. at 481.
This duty to consult arises “when there is reason to think
either (1) that a rational defendant would want to appeal (for
example, because there are nonfrivolous grounds for appeal), or
(2) that this particular defendant reasonably demonstrated to
counsel that he was interested in appealing.” Id. at 480. As
the district court found, Matthews did not “reasonably
demonstrate[]” an interest in appealing. Thus, his counsel had
a duty to consult him only if a rational defendant in Matthews’s
position would wish to appeal. The record provides no support
for such a conclusion.
Here, Matthews pled guilty to the offense, and in so doing
expressly and voluntarily waived his right to appeal. As a
result of that agreement, Matthews received a sentence nearly
100 months shorter than the bottom of his original Guidelines
range. At oral argument before us, Matthews’s appellate counsel
conceded that Matthews would gain nothing from an appeal. In
fact, because any appeal would breach his obligations under the
favorable plea agreement, Matthews would likely have received a
longer prison sentence if he chose to file a notice of appeal.
Surely, no rational defendant would have chosen to appeal when
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there was literally no upside -- and potentially a significant
downside -- to doing so.
Accordingly, we hold that this constitutes one of the rare
cases in which an attorney did not have a duty to consult with
his client regarding an appeal.
III.
The judgment of the district court is
AFFIRMED.
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