Michael Webb v. USA

Filing

Opinion issued by court as to Appellant Michael Jermaine Webb. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 05/03/2017

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14487
Non-Argument Calendar
________________________
D.C. Docket Nos. 5:11-cv-00180-RS-GRJ,
5:09-cr-00041-RS-GRJ-2
MICHAEL JERMAINE WEBB,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(May 3, 2017)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Michael Jermaine Webb appeals the district court’s denial of his pro se 28
U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, on ineffectiveassistance-of-counsel grounds.

Webb argues that the district court erred in

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rejecting his claim that his trial counsel, Clifford L. Davis, ineffectively failed to
file a direct appeal. After careful review, we affirm.
For § 2255 proceedings, we review a district court’s legal conclusions de
novo and its factual findings for clear error. Devine v. United States, 520 F.3d
1286, 1287 (11th Cir. 2008). Clear error occurs where our review of the record
leaves us with the definite and firm conviction that a mistake has been made.
United States v. White, 335 F.3d 1314, 1319 (11th Cir. 2003).

A claim of

ineffective assistance of counsel, a mixed question of law and fact, is reviewed de
novo. Devine, 520 F.3d at 1287.
When a factfinder assesses the credibility of witnesses, we give substantial
deference to its determination. Id. We will overturn a district court’s credibility
determination only if the court’s choice of whom to believe is against the laws of
nature, or so facially inconsistent or improbable that no reasonable factfinder could
accept it.

United States v. Holt, 777 F.3d 1234, 1255 (11th Cir. 2015).

Accordingly, a district court’s finding based on its decision to credit the testimony
of a witness -- that is not contradicted by extrinsic evidence -- can virtually never
be clear error. United States v. Barakat, 130 F.3d 1448, 1453 (11th Cir. 1997).
The standard set out in Strickland v. Washington, 466 U.S. 668 (1984),
applies in determining whether counsel was ineffective for failing to file a notice of
appeal. Devine, 520 F.3d at 1287. The Strickland standard requires the defendant
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to show that (1) counsel’s representation fell below an objective standard of
reasonableness, and (2) counsel’s deficient performance prejudiced the defendant.
Id. at 1288. Under the first prong, counsel’s failure to file an appeal on behalf of a
client who specifically requests it is per se professionally unreasonable.

Id.

Because a lawyer’s failure to file an appeal upon request denies the defendant an
entire judicial proceeding, prejudice is presumed, and the defendant is entitled to a
late appeal. Gomez-Diaz v. United States, 433 F.3d 788, 792 (11th Cir. 2005).
When the client does not specifically request counsel to file an appeal, the
court must ask whether counsel consulted with his client about the advantages and
disadvantages of appealing and made a reasonable effort to determine his client’s
wishes. Id. If the attorney properly consulted with his client, the attorney’s failure
to file an appeal is only unreasonable if he ignored his client’s express wishes to
appeal. Id. If the attorney did not properly consult with his client, the court must
ask whether counsel had an affirmative duty to consult, which is triggered when
either: (1) any rational defendant would want to appeal, or (2) his particular client
reasonably demonstrated an interest in appealing. Id.
Here, the district court did not err in dismissing Webb’s claim that his
counsel ineffectively failed to file a notice of appeal. While the parties do not
dispute that Webb requested immediately after sentencing that his counsel file an
appeal, the issue is whether Webb and his counsel subsequently agreed not to file
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an appeal. Because the testimony concerning this issue was contradictory, the
magistrate judge acknowledged that it needed to make a credibility determination.
Notably, the parties proffered no records to verify whether or not Webb and
counsel agreed not to appeal between sentencing and the end of the 14-day time
frame (other than a later letter correspondence).

Without any records, the

magistrate judge and the district court had no circumstantial evidence weighing
either way, and had to base their factual findings on the live testimony provided.
Based on the testimony, the magistrate judge credited counsel’s testimony
over that of the Webb family, and made findings supported by the record that did
not amount to clear error. White, 335 F.3d at 1319; Barakat, 130 F.3d at 1453.
First, the magistrate judge found that counsel presented well-founded reasons
against appealing -- namely, counsel testified that he and Webb discussed that
Webb was unlikely to succeed on appeal since he was sentenced within the
guideline range and under the mandatory minimum, and that he was more likely to
obtain a reduced sentence by continuing to cooperate under a § 5K1.1 motion and
potential Rule 35 motion. Counsel explained that he and Webb discussed that
Webb would not have been able to challenge the factual weight of the drugs at
sentencing without risking losing the benefit of a § 5K1.1 or Rule 35 motion.
The magistrate judge further found that counsel and Webb had discussed the
disadvantages of appealing, and that they mutually agreed not to appeal. While
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counsel admitted that Webb said several times during the 14-day time frame that
he wanted to file an appeal, counsel also testified that they had subsequent
discussions about the pros and cons of appealing, they mutually agreed not to
appeal due to those discussions, and Webb’s ultimate decision was not to appeal
based on his confidence in counsel’s advice. Counsel additionally testified that, if
Webb had told him to appeal despite his advice -- which did not happen -- he
would have appealed. Webb added that he often followed counsel’s advice and
wanted their relationship to remain friendly.
The magistrate judge next found that Webb failed to deny or comment on
counsel’s testimony that they discussed the propriety of an appeal and ultimately
decided against it. As the record shows, Webb did not specifically testify that he
and counsel never discussed the propriety of an appeal or that they never reached a
mutual agreement not to appeal, even though Webb had the opportunity to offer
rebuttal testimony. Although the testimony is somewhat mixed on this issue, it
was not clear error for the magistrate judge to find that Webb never presented
testimony directly rebutting counsel’s claim. See White, 335 F.3d at 1319.
The magistrate judge also made multiple findings that Webb’s and counsel’s
letter correspondence indicated that they agreed to pursue continued cooperation
with the government, instead of appealing. First, the magistrate judge found that
Webb offered no credible explanation for waiting several months before asking
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about the status of an appeal. Webb testified that he was on lock-down for 23
hours a day, was essentially “handicapped” in that he could not contact counsel,
and wanted his relationship with counsel to remain friendly, but this testimony was
contradicted by testimony that he was aware of his appellate rights and failed to
explain why he still was able to contact his sister about the appeal during the 14day time frame.
Second, the magistrate judge found that Webb’s letters -- dated after the time
to appeal had ended -- revealed his interest in continuing cooperation with the
government. Webb’s September 1, 2010 letter made no mention of an appeal and
requested documents to help find a way to reduce his sentence. Webb’s September
24, 2010 letter suggested that a direct appeal could have been filed as to the
presentence investigation report, but also indicated that he understood that no
appeal was pending and that the time for appealing had passed, and included
documents for his counsel to use “to get [Webb] back into court.” Webb did not
specifically ask about the status of an appeal until his December 12 letter, which
counsel testified asked about an appeal as a predicate for a § 2255 motion. Finally,
Webb’s February 13, 2011 letter contained information that he hoped would be
useful to the government and would further reduce his sentence.
On this record, we cannot say that the magistrate judge clearly erred in
finding that Webb’s ultimate decision was not to file an appeal. See Devine, 520
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F.3d at 1287; Barakat, 130 F.3d at 1453; White, 335 F.3d at 1319. While there
were several instances where counsel’s answers about his communications with
Webb were qualified and nonspecific, the magistrate judge -- faced with
contradictory testimony from counsel and the Webbs -- was permitted to rely upon
counsel’s general, yet unequivocal assertions that he and Webb discussed the
propriety of an appeal and ultimately decided against it. Devine, 520 F.3d at 1287.
Indeed, none of the facts to which he testified were against the laws of nature, or so
facially inconsistent or improbable that no reasonable factfinder could accept them.
See Holt, 777 F.3d at 1255. Thus, the magistrate judge and the district court were
permitted to make factual findings based upon counsel’s version of the events, and
we are required to give substantial deference to that credibility determination. See
Devine, 520 F.3d at 1287.
As for Webb’s reliance on Fry v. Pliler, 551 U.S. 112 (2007), it is misplaced.
In Fry, the Supreme Court considered which specific harmless error standard of
review applies for cases on collateral review of a state-court criminal judgment
under 28 U.S.C. § 2254, specifically for assessing the prejudicial impact of a
federal constitutional error in a state-court criminal trial. Id. at 116, 120, 121 n.3.
It held that, when a court is in equipoise as to whether an error was harmless, the
court should assume that the error affected the verdict. Id. Importantly, Fry

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involved the harmless error standard, see id., which is not the standard that applies
here -- we are reviewing for clear error, see Barakat, 130 F.3d at 1453.1
Because the district court did not clearly err in finding that counsel acted
according to Webb’s ultimate decision not to appeal, it did not err in concluding
that Webb failed to satisfy the first prong of the Strickland ineffectiveness
standard. Devine, 520 F.3d at 1287-88. Accordingly, we affirm the district court’s
denial of Webb’s § 2255 motion.
AFFIRMED.

1

Webb’s remaining arguments -- that any mutual decision not to appeal would have been
uninformed, and that counsel’s failure to file an appeal was objectively unreasonable -- are
waived on appeal. As for claim that a decision not to appeal would have been uninformed, he
waived it by failing to object to the magistrate judge’s failure to address the issue. See 11th Cir.
R. 3-1 (directing that failure to object to a magistrate judge’s findings or recommendations
generally waives the right to challenge on appeal the district court’s order based on unobjected-to
factual findings and legal conclusions). Even so, the magistrate judge did not clearly err in
finding that Webb and counsel mutually agreed not to appeal after discussing the pros and cons
of appealing -- an implicit finding that the decision was informed -- since counsel credibly
testified to that fact, and Webb testified that the court notified him of his appellate rights. See
White, 335 F.3d at 1319. As for the argument that counsel’s failure to file an appeal was
objectively unreasonable, Webb similarly waived it by failing to object. As the record shows,
Webb failed to object to the magistrate judge’s finding that the reasonableness of counsel’s
decision not to file an appeal was irrelevant. In any event, we are unpersuaded by the
reasonableness argument since counsel credibly testified that they mutually agreed not to appeal
after counsel consulted with Webb to discuss the pros and cons of appealing.
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