Evert Stephen v. USA

Filing

Opinion issued by court as to Appellant Evert Stephen. 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.

Case: 16-12952

Date Filed: 08/23/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12952
Non-Argument Calendar
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D.C. Docket Nos. 0:14-cv-60397-JIC; 0:13-cr-60135-JIC-1

EVERT STEPHEN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 23, 2017)

Before MARCUS, WILLIAM PRYOR and BLACK, Circuit Judges.
PER CURIAM:

Case: 16-12952

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Evert Stephen, a federal prisoner serving a 15-year sentence after pleading
guilty to being a felon in possession of a firearm, appeals the denial of his motion
to vacate filed pursuant to 28 U.S.C. § 2255. Stephen was granted a certificate of
appealability on the following issue: “Whether the district court erred in assessing
Mr. Stephen’s constitutional claim that trial counsel was ineffective with regard to
filing a notice of appeal based on its finding that counsel had testified at the
evidentiary hearing that Stephen had instructed him not to appeal?” After review,1
we affirm the district court.
Stephen asserts his trial counsel was ineffective for failing to adequately
consult with him such that he could make an intelligent and knowing decision
about whether to appeal. He asserts Roe v. Flores-Ortega, 528 U.S. 470 (2000),
does not preclude a defendant who instructed counsel not to file an appeal from
arguing that counsel’s advice regarding whether to appeal was itself inadequate,
causing the defendant to instruct the counsel not to appeal.
To succeed on an ineffective-assistance claim, a defendant must show that
(1) his attorney’s performance was deficient, and (2) the deficient performance
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). With
respect to the first prong of Strickland, an attorney who disregards specific
1

In a § 2255 proceeding, 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).
Whether counsel was ineffective is a mixed question of law and fact that we review de novo. Id.
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instructions from his client to file a notice of appeal acts in a professionally
unreasonable manner. Flores-Ortega, 528 U.S. at 477. “At the other end of the
spectrum, a defendant who explicitly tells his attorney not to file an appeal plainly
cannot later complain that, by following his instructions, his counsel performed
deficiently.” Id. (emphasis in original).
However, in “those cases where the defendant neither instructs counsel to
file an appeal nor asks that an appeal not be taken,” a court must first inquire into
whether counsel consulted with the client regarding the advantages and
disadvantages of appealing and made a reasonable effort to determine the client’s
wishes. Id. at 478. “If counsel has not consulted with the defendant, the court
must in turn ask a second, and subsidiary, question: whether counsel’s failure to
consult with the defendant itself constitutes deficient performance.” Id. If counsel
performed deficiently, the defendant must demonstrate prejudice by showing that
there was a reasonable probability that, but for counsel’s deficient failure to consult
with him about an appeal, he would have timely appealed. Id. at 484.
The district court did not err in assessing Stephen’s ineffective-assistance
claim based on its factual finding Stephen directed counsel not to appeal. As an
initial matter, the court did not clearly err in adopting counsel’s version of the
events as the more credible one, and we allot substantial deference to the factfinder

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Case: 16-12952

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in reaching credibility determinations with respect to witness testimony. See
Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008).
The district court’s conclusion that Flores-Ortega did not apply to Stephen’s
case was not erroneous. First, the court’s factual finding that Stephen affirmatively
told counsel not to appeal was not clearly erroneous, as counsel’s “memo to file”
that was made contemporaneously with Stephen’s sentencing, which was part of
the testimony at the evidentiary hearing, explicitly noted counsel explained to
Stephen that he had a right to appeal, but Stephen told counsel not to. Hence, the
court’s factual finding was supported by evidence in the record and does not leave
this Court with the definite and firm conviction that it is wrong. See Branch v.
Sec’y, Fla. Dep’t of Corr., 638 F.3d 1353, 1356 (11th Cir. 2011) (“A finding is
clearly erroneous when we are left with the definite and firm conviction that it is
wrong.”).
Second, the court did not err by concluding that, because Stephen
affirmatively told counsel not to appeal, Flores-Ortega did not provide the relief
sought. Flores-Ortega concerned a defendant who had not clearly conveyed his
wishes regarding appeal one way or the other. See Flores-Ortega, 528 U.S. at 477.
Conversely, in Stephen’s case, he clearly conveyed to counsel that he did not wish
to pursue an appeal.

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Finally, Stephen’s argument that the Supreme Court in Flores-Ortega
indicated that failing to adequately consult with a defendant about an appeal “itself
constitutes deficient performance” is unavailing. The paragraph to which Stephen
cites begins by clarifying that it applies to “those cases where the defendant neither
instructs counsel to file an appeal nor asks that an appeal not be taken.” FloresOrtega, 528 U.S. at 478. Flores-Ortega stated that, in such cases, the court must
inquire into whether counsel consulted with the defendant about an appeal, and, if
not, whether failure to do so “itself constitutes deficient performance.” Id. As
discussed above, this inquiry was not required in Stephen’s case, as the district
court found that he affirmatively instructed counsel not to appeal, and that finding
was not clearly erroneous. Accordingly, the district court did not err in assessing
Stephen’s ineffective-assistance claim based on its non-clearly erroneous finding
he told Orenstein not to appeal, and we affirm.
AFFIRMED.

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