Weibel v. United States of America

Filing 52

ORDER adopting 47 Report and Recommendation; overruling 51 Objection to Report and Recommendation; dismissing 1 Petition and declining to issue a certificate of appeabability. Signed by U.S. District Judge Jeffrey L. Viken on 4/8/20. (SB) Modified on 4/8/2020 (SB).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
NATHANIEL JOHNROSS WEIBEL,

CIV. 17-5072-JLV

Petitioner,
vs.

ORDER

UNITED STATES OF AMERICA,

Respondent.
INTRODUCTION
Petitioner Nathaniel Weibel filed a petition for habeas corpus relief
pursuant to 28 U.S.C. § 2255 (“2255 Petition”). (Docket 1). The court filed an
order dismissing all of Mr. Weibel’s claims except his claim that his counsel at
the time of sentencing was ineffective for failing to file a direct appeal in his
criminal case United States v. Nathaniel Johnross Weibel, CR. 16-50027
(D.S.D. 2017).1 (Docket 35). Pursuant to a standing order of April 1, 2018,
and 28 U.S.C. § 636(b)(1)(B), the matter was referred to United States
Magistrate Judge Daneta Wollmann for a report and recommendation (“R&R”).
The magistrate judge recommended the court dismiss with prejudice
petitioner’s Sixth Amendment claim. (Docket 47 at p. 11). Mr. Weibel timely
filed objections to the R&R. (Docket 51). For the reasons set forth below, the

1All

references to the criminal case will be cited as “CR. Docket ____.”
All references to the civil habeas proceeding will be cited as “Docket ____.”

court overrules Mr. Weibel’s objections and adopts the R&R consistent with
this order.
OBJECTIONS
Mr. Weibel asserts five objections to the R&R. Those are summarized as
follows:
1.

The magistrate judge erred in finding Attorney Diggins’ notes
indicate Mr. Weibel sought to obtain a copy of the sentencing
transcript as opposed to petitioner instructing Mr. Diggins to
file a notice of appeal. (Docket 51 ¶ 2).

2.

The magistrate judge erred in finding Attorney Diggins’
testimony more credible than Mr. Weibel’s testimony on the
question of whether petitioner instructed his attorney to file
a notice of appeal. Id. ¶ 3.

3.

The magistrate judge erred in finding Mr. Weibel did not
clearly manifest his instructions to his attorney to file a
notice of appeal. Id. ¶ 4.

4.

The magistrate judge erred in concluding Barger2 applied to
petitioner’s case.

5.

The magistrate judge erred in recommending Mr. Weibel’s
Sixth Amendment claim should be dismissed with prejudice.
Id. ¶ 1.

Petitioner’s objections will be addressed in the manner deemed most
appropriate by the court.
ANALYSIS
“[O]nce a party makes a proper objection to a magistrate’s finding,
including a credibility finding, the district court must make a de novo

2Barger

v. United States, 204 F.3d 1180 (8th Cir. 2000).
2

determination of that finding.” Taylor v. Farrier, 910 F.2d 518, 521 (8th Cir.
1990) (emphasis in original). “The court need not conduct a de novo hearing,
. . . but must nonetheless make a de novo determination of that finding based
on the record.” Id. (internal citation omitted). “In conducting [de novo]
review, the district court must, at a minimum, listen to a tape recording or read
a transcript of the evidentiary hearing.” Jones v. Pillow, 47 F.3d 251, 252 (8th
Cir. 1995) (internal citation omitted). “[A] district judge must affirmatively
state that he has read the transcript . . . .” United States v. Hamell, 931, F.2d
466, 468 (8th Cir. 1991).
Fed. R. Civ. P. 52(a)(6) provides, in relevant part, that “[f]indings of fact,
whether based on oral or other evidence, must not be set aside unless clearly
erroneous, and the reviewing court must give due regard to the trial court’s
opportunity to judge the witnesses’ credibility.” Judging witness credibility is
a multi-faceted process.
When findings are based on determinations regarding the credibility
of witnesses, Rule 52(a) demands even greater deference to the trial
court’s findings; for only the trial judge can be aware of the
variations in demeanor and tone of voice that bear so heavily on the
listener’s understanding of and belief in what is said. . . . This is not
to suggest that the trial judge may insulate his findings from review
by denominating them credibility determinations, for factors other
than demeanor and inflection go into the decision whether or not to
believe a witness. Documents or objective evidence may contradict
the witness’ story; or the story itself may be so internally
inconsistent or implausible on its face that a reasonable factfinder
would not credit it.
Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985) (internal citation
omitted).
3

Section 636(b) of Title 28 of the United States Code “requires the district
court to review de novo those portions of a magistrate judge’s reports and
findings which are objected to by a party.” United States v. Storey, 990 F.2d
1094, 1097 (8th Cir. 1993). See also Thompson v. Nix, 897 F.2d 356, 357-58
(8th Cir. 1990). The court may then “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1).
Mr. Weibel was charged in a multi-count indictment. (CR. Docket 20).
He was charged with two counts of attempted sexual exploitation of a minor in
violation of 18 U.S.C. §§ 2251(a) and (e); six counts of attempted enticement of
a minor using the internet in violation of 18 U.S.C. § 2422(b); and seven counts
of transfer of obscene material to a minor in violation of 18 U.S.C. § 1470. Id.
Exactly one year later, Mr. Weibel entered into a plea agreement with the
government. (CR. Dockets 65-68). As part of the plea agreement a
superseding information was filed which charged Mr. Weibel with one count of
attempted enticement of six minors using the internet in violation of 18 U.S.C.
§§ 2422(b) and 2427. (CR. Docket 69). Mr. Weibel pled guilty to the
superseding information. (CR. Dockets 71 & 74). The court adjudged Mr.
Weibel “guilty of attempted enticement of a minor as charged in the
superseding information.” (CR. Docket 75). The court ordered the
preparation of a psychosexual evaluation report (“PER”). (CR. Docket 78). A

4

presentence investigation report (“PSR”) and PER were filed. (CR. Dockets 85
& 88).
The court conducted a sentencing hearing on June 21, 2017. (CR.
Docket 90). The court sentenced Mr. Weibel to 300 months incarceration in
the custody of the United States Bureau of Prisons, together with supervised
release for life on mandatory and special conditions. (CR. Docket 91).
On September 11, 2017, Mr. Weibel timely filed a petition pursuant to
28 U.S.C. § 2255 (“§ 2255 Petition”) to vacate or set aside his criminal
conviction. (Docket 1). The court entered an order dismissing all of
petitioner’s claims except his claim that his then attorney, Assistant Federal
Public Defender Thomas Diggins, was ineffective for failing to file a direct
appeal in Mr. Weibel’s criminal case. (“Sixth Amendment Claim”). (Docket
35).
Magistrate Judge Wollmann held an evidentiary hearing on petitioner’s
Sixth Amendment Claim. Evidence developed in the hearing will be presented
as necessary to resolve each of Mr. Weibel’s objections.
Following sentencing, Mr. Diggins sent a letter dated June 22, 2017, to
Mr. Weibel. (Hearing Exhibit A). As relevant to Mr. Weibel’s 2255 Petition,
the letter stated:
Enclosed is a copy of the Judgment that I received in your case.
This letter is to inform you that your deadline for filing an appeal of
your sentence is July 5, 2017. I will visit you in person before June
28, 2017, to discuss your right to appeal.
Id.
5

On June 26, 2017, Mr. Diggins visited Mr. Weibel at the Pennington
County Jail. (Docket 47 at p. 4). Mr. Weibel testified they met privately in a
“conference room . . . on the second floor of the jail.” (Docket 48 at p. 12:1112).3 Mr. Weibel asked Mr. Diggins “how [can we] do this appeal.” Id. at
p. 13:20. According to Mr. Weibel, Mr. Diggins’ response was that he would
“have to go through and look at everything because I signed [a waiver of appeal
as part of the plea agreement].” Id. at p. 13:20-22. Mr. Weibel insists that
during their first meeting he told Mr. Diggins he “wanted a notice of appeal
filed.” Id. at pp. 14:24-15:2.
During their meeting, Mr. Diggins prepared notes of his conversation
with Mr. Weibel. (Hearing Exhibit B). Mr. Diggins testified his notes fairly
and accurately depict the conversations he had with Mr. Weibel postsentencing.4 (Docket 48 at p. 39:16-19). Mr. Diggins employed his own
short-hand form of contemporaneous notetaking to summarize the content of
his conversation with Mr. Weibel. Id. at p. 40:22.
During their meeting, Mr. Diggins testified he “advised [Mr. Weibel] of his
appeal rights.” Id. at p. 41:2-3. Mr. Diggins asserted his notes confirm his

3Because

the evidentiary hearing had to be conducted on two separate
days, the court will cite to the docket entry in CM/ECF and the page and line
number of that entry as opposed to the page of the transcript.
4Mr.

Diggins redacted the telephone number of Mr. Weibel’s brother.
(Docket 48 at p. 39:19-21). Mr. Weibel’s habeas attorney did not object to the
redaction. Id. at pp. 39:25-40:1.
6

recollection of their conversation: “w/ @ PCJ adv. Re appeal rts” stands for
met “with defendant . . . at . . . Pennington County Jail. . . . [and] advised him
of his appeal rights.” Id. at pp. 40:22-24 & 41:1-3 (referencing Exhibit B at
p. 1).
The next note has a star next to it with the following notation: “ wants
sent. transcript” which Mr. Diggins was “certain” meant Mr. Weibel wants a
copy of the sentencing transcript.5 Id. at p. 41:1-42:2 (referencing Exhibit B at
p. 1). The next line is “appeal nec” which Mr. Diggins testified was a note to
himself asking whether “it was necessary to file an appeal to get the transcript
of the sentencing hearing.” Id. at p. 42:4-9 (referencing Exhibit B at p. 1).
Mr. Diggins stated that “appeal necessary” was “not a reference in general to
filing an appeal, but rather to whether or not [he] needed to [file a notice of
appeal] to get the sentencing transcript.” Id. at p. 42:10-13. When asked if
the note meant Mr. Weibel told him to file an appeal, Mr. Diggins responded
“[t]hat’s not what it means to me. It’s a question as to could we get the
transcript without filing an appeal.” Id. at p. 43:4-7. He testified there was
“no doubt in my mind that when I wrote ‘appeal nec,’ I was referring to the
sentencing transcript.” Id. at p. 43:11-13 (capitalization omitted).

5Mr.

Diggins testified he uses stars for two reasons. “One is something’s
very important I want to draw my attention to it later. The other is it’s often
used where I need to do something at a later time.” (Docket 48 at pp. 46:2247:1).
7

Beneath “appeal nec” Mr. Diggins wrote “w/SM–write to Judy Thompson
ct. reporter.” (Exhibit B at p. 1). Mr. Diggins testified that after meeting with
Mr. Weibel, he met “with Scott McGregor, who’s a research and writing attorney
[he] work[ed] with.” (Docket 48 at p. 42:15-16). Mr. Diggins recalls meeting
with Mr. McGregor who said an appeal was not necessary and all that had to
be done was to write to the court reporter, Judy Thompson, to get a copy of the
sentencing transcript.6 Id. at p. 42:19-23. Mr. Diggins inserted the comment
into his notes as a result of his meeting with Mr. McGregor. Id. at pp. 43:2344:6.
The next notation has a star next to it and Mr. Diggins wrote “what is
needed for habeas.” (Exhibit B at p. 1). Below that notation Mr. Diggins
wrote “w/SM: § 2255; no appeal nec.” Id. Mr. Diggins testified this notation
referenced his conversation with Mr. McGregor who told him “no appeal [was]
necessary to file a habeas or 2255.” (Docket 48 at p. 43:19-20). Again, the
comment was inserted into his notes after Mr. Diggins’ meeting with Mr.
McGregor. Id. at pp. 43:23-44:6. Mr. Diggins believes he
had a discussion with Mr. Weibel that day regarding the appeal
waiver [in the plea agreement] and the fact that his sentence,
although shockingly long, was below the guideline range and would
fall into that waiver. And I believe connecting that to the next note
regarding habeas, that we had a discussion about [Ms.] Bolinger’s
6Mr.

Diggins knew Mr. McGregor had at least ten years’ experience in the
Federal Public Defender’s Office and specialized in appeals and brief writing.
(Docket 49 at p. 8:7-17). Mr. Diggins acknowledged that had he filed an
appeal for Mr. Weibel, it would have been his first appeal since becoming an
Assistant Federal Public Defender. (Docket 49 at p. 6:3-4).
8

representation of him and whether he could seek relief via the plea
agreement, when she represented him.7
Id. at p. 61:4-11.
During the hearing, Mr. Diggins was asked if at their first meeting Mr.
Weibel asked that an appeal be filed. Mr. Diggins responded: “[f]irst of all, I
don’t recollect him saying that. Had he said that, I would have noted it, and I
would have filed the notice of appeal.” Id. at p. 44:13-18. Mr. Diggins
understood it was his obligation to file a notice of appeal if his client had asked
that an appeal be filed. Id. at p. 44:19-21.
Mr. Weibel’s next communication was a voicemail to Mr. Diggins. The
second page of Mr. Diggins’ notes indicates on June 28, 2017, “tc fr ” which
meant a “telephone call from defendant,” in his shorthand. Id. at p. 45:16-20
(referencing Exhibit B at p. 2). The next line “vsmg” stood for the defendant
“left me a message,” meaning a voicemail. Id. at p. 45:23 (referencing Exhibit
B at p. 2). Mr. Weibel’s message was to bring his “PSI,” which is the state
court equivalent of presentence investigation report (“PSR”) in federal court and
“superceding indict” meant superseding indictment. Id. at p. 46:1-2. To the
right of that notation, Mr. Diggins wrote “bring when visit.” Id. at p.46:2-3.
Mr. Diggins met Mr. Weibel at the Pennington County Jail on June 30,
2017. Id. at p. 46:15-16 (referencing Exhibit B at p. 3). For this meeting Mr.

Ms. Bolinger was the Assistant Federal Public Defender who represented
Mr. Weibel through the change of plea hearing. CR. Dockets 65-66 & 71.
When she left the office, Mr. Diggins took over the case. (Docket 48 at p. 32:39).
9
7

Diggins “brought copies of the indictment, the superseding information, and
the presentence investigation report to Mr. Weibel.” Id. at p. 46:16-19
(referencing Exhibit B at p. 3). Interpreting the next line: “adv. c/n take to
prison, he knows” Mr. Diggins told Mr. Weibel “he could not take those
[documents] to prison, and he told me he knew that.” Id. at p. 46:19-21
(referencing Exhibit B at p. 3).
The final notes on page 3 of Mr. Diggins’ notes contains his short-hand
summary of his discussion with Mr. Weibel about a simple assault charge in
state court. That notation was:
call SAO re  SA
- reps that current is
for fight @ PCJ (Josh Clark)
-adv.  to call 7/5 to
check on status
(Exhibit B at p. 3). Mr. Diggins explained:
[T]that note is to call the state’s attorney’s office regarding a . . .
dismissal of a simple assault charge that was pending. Below that,
my translation is Mr. Weibel represented to me that it was a fight at
the county jail, and I believe with someone named Josh Clark. And
then I advised Mr. Weibel to call me on July 5 to check the status of
that. And I believe what I probably told him is that I’ll call the
state’s attorney’s office and see if we can get it resolved, so call me
and I’ll let you know.8
(Docket 48 at p. 47:2-12).
Mr. Diggins had no recollection of Mr. Weibel asking him to file a notice
of appeal. Id. at p. 47:22-25. Mr. Diggins insisted he “believe[d] had [Mr.

8Mr.

Diggins testified it was merely coincidence that he asked Mr. Weibel
to call him about the state assault case on July 5 because the office would be
closed on July 4. (Docket 48 at p. 66:15-22). Mr. Diggins stated this July 5
reference was not associated with the deadline for filing a direct appeal in Mr.
Weibel’s criminal case. (Docket 49 at p. 10:7-22).
10

Weibel] said that, I would have noted it and filed it [a notice of appeal].” Id. at
p. 48:3-4. It was Mr. Diggins’ “independent recollection” and based on his
review of his notes, Mr. Weibel did not ask him to file a notice of appeal. Id. at
pp. 48:24-49:1. Based on his past practice, Mr. Diggins testified that had Mr.
Weibel “made that request, I would have done it.” Id. at p. 49:2-3. Mr.
Diggins insisted that if a client indicates “in some way, verbally or in writing,
that they want an appeal filed” he would file the notice of appeal. Id. at
p. 53:15-17. Mr. Diggins testified that if a client tells him to file a notice of
appeal, he does not instruct them to call his office to confirm that the notice of
appeal had been filed. Id. at p. 67:3-4. Rather, it was Mr. Diggins’ practice to
file a notice of appeal and the client receives a copy in the mail or Mr. Diggins
delivers it to client. Id. at p. 67:5-6.
When asked on cross-examination if his newness to the federal system
made him unsure about whether he could file a notice of appeal considering
the appellate waiver in the plea agreement, Mr. Diggins answered “[n]o.” Id. at
pp. 67:24-68:4. He explained: “I don’t think the appellate waiver would have
caused me to not file an appeal had he requested one.” Id. at p. 68:4-6. Mr.
Diggins recalls Mr. Weibel “made comments that he may want to appeal or he
may want to challenge [Ms. Bollinger’s] representation because of the plea
agreement that he entered in to.”9 (Docket 49 at p. 13:18-22).

9Mr.

Weibel claimed Ms. Bolinger told him the judge would not sentence
him to more than 10 years if he signed the plea agreement. (Docket 48 at
p. 8:13-22).
11

Mr. Weibel testified he had several other meetings with Mr. Diggins and
they “talked several other times about it.” (Docket 48 at p. 15:3-6). Mr.
Weibel stated each time he asked Mr. Diggins to file a notice of appeal. Id. at
p. 15:21-24. Mr. Weibel’s description of Mr. Diggins response was as follows:
Every time it was the same story; well I got to see what I can do. I
got to figure out a way around this one. I got to figure out a way.
I don’t know how I can get around these.
That’s all he wanted to talk about was he didn’t know how to go
around and what he would have to go through and look up stuff to
figure out something.
Id. at p. 16:1-7. Mr. Weibel testified each time he met with Mr. Diggins they
were able to understand each other. Id. at p. 20:7-13.
1.

THE MAGISTRATE JUDGE ERRED IN FINDING ATTORNEY
DIGGINS’ NOTES INDICATE MR. WEIBEL SOUGHT TO OBTAIN A
COPY OF THE SENTENCING TRANSCRIPT AS OPPOSED TO
PETITIONER INSTRUCTING MR. DIGGINS TO FILE A NOTICE OF
APPEAL
The court finds Mr. Diggins’ notes properly account for the parties’

conversations. It is clear Mr. Diggins was concerned with whether Mr. Weibel
could obtain a copy of the sentencing transcript without filing a direct appeal.
Mr. Diggins’ subsequent conversation with Assistant Federal Public Defender
McGregor was directed toward resolving that same question.
Mr. Diggins knew the court’s sentence of 300 months custody was below
the guideline sentence calculated in the PSR. On the other hand, Mr. Diggins
knew Mr. Weibel’s complaint of Ms. Bolinger’s representation would have to be

12

addressed through a 2255 Petition, asserting a claim of ineffective assistance of
counsel against her. Mr. Diggins’ notes are consistent with that analysis.
Petitioner’s first objection is overruled.
2.

THE MAGISTRATE JUDGE ERRED IN FINDING ATTORNEY
DIGGINS’ TESTIMONY MORE CREDIBLE THAN MR. WEIBEL’S
TESTIMONY ON THE QUESTION OF WHETHER PETITIONER
INSTRUCTED HIS ATTORNEY TO FILE A NOTICE OF APPEAL
The magistrate judge found “the testimony of Mr. Diggins is credible and

Mr. Weibel’s testimony is not.” (Docket 47 at p. 9). The magistrate judge
found “Mr. Diggins’s manner and demeanor in testifying support the court’s
crediting his version of events.” Id. Despite Mr. Diggins being a new member
of the Federal Public Defender’s staff, the magistrate judge acknowledged “Mr.
Diggins’s understanding of a Defendant’s unfettered right to appeal from state
court proceedings, further credits his testimony that . . . he would have filed an
appeal if instructed to do so, even if he believed the appeal would have had no
merit.” Id.
The court reviewed the transcripts of the evidentiary hearing and the two
exhibits. In listening to the FTR audio recording and reviewing the written
transcripts of the hearing before the magistrate judge, the court finds Mr.
Diggins was candid about his shortcomings as a new Assistant Federal Public
Defender and specific in his recollection of his conversations with Mr. Weibel.
During the hearing, the magistrate judge considered the demeanor, body
language, and delivery of both Mr. Weibel and Mr. Diggins in deciding to credit
Mr. Diggins’ testimony over that of Mr. Weibel. As the reviewing court, this
13

court “must give due regard to the [magistrate judge’s] opportunity to judge the
witnesses’ credibility.” Lesch v. United States, 612 F.3d 975, 980 (8th Cir.
2010) (citing Fed. R. Civ. P. 52(a)(6)). While the court cannot consider body
language, it does have the opportunity to judge the demeanor and delivery of
both witnesses.
Mr. Weibel testified he had “several” conversations with Mr. Diggins and
that every time he asked that an appeal be filed. (Docket 48 at p. 15:3-6 & 2124). The court’s impression of Mr. Weibel’s testimony is that it was
convenient, self-serving and generally not candid.
On the other hand, Mr. Diggins was absolutely confident Mr. Weibel did
not instruct him to file a notice of appeal. (Docket 48 at pp. 48:24-49:1) (Mr.
Diggins had an independent recollection Mr. Weibel did not ask him to file a
notice of appeal.). The court adopts the magistrate judge’s findings that “Mr.
Diggins is an attorney in good standing with the South Dakota State Bar and
the United States District Court for the District of South Dakota” and has
participated in nearly “100 jury trials dating back to 1997.” (Docket 47 at
p. 9). The court finds that had Mr. Weibel asked for an appeal to be filed, Mr.
Diggins would have filed a notice of appeal, regardless of his own opinion as to
the merits of that action. The court finds the testimony of Mr. Diggins was
credible.
Petitioner’s second objection is overruled.

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3.

THE MAGISTRATE JUDGE ERRED IN FINDING MR. WEIBEL DID
NOT CLEARLY MANIFEST HIS INSTRUCTIONS TO HIS ATTORNEY
TO FILE A NOTICE OF APPEAL
The magistrate judge found “the question of whether an appeal would be

pursued was ambiguous and left without a definite resolution.” (Docket 47 at
p. 11). The magistrate judge concluded “[t]his evidence . . . does not prove a
clear manifestation of a desire to appeal on Mr. Weibel’s part to Mr. Diggins.”
Id.
Mr. Weibel “maintains that his testimony was accurate and that he had
instructed [Mr. Diggins[ to file a notice of appeal.” (Docket 51 ¶ 3). Petitioner
asserts “his testimony was credible and that [Mr. Diggins] was unfamiliar with
the appellate process in federal court, as he was newly hired by the Federal
Public Defender’s Office, [he was] not familiar with the appellate waiver process
in a standard plea bargain and had not previously filed an appeal in federal
court.” Id.
To be entitled to habeas relief, Mr. Weibel “must have made manifest
[his] desire to appeal by expressly instructing [his] attorney to appeal.” Nupdal
v. United States, 666 F.3d 1074, 1076 (8th Cir. 2012) (internal quotation
marks and citation omitted). “A bare assertion by the petitioner that [he]
made a request is not by itself sufficient to support a grant of relief, if evidence
that the fact-finder finds to be more credible indicates the contrary
proposition.” Walking Eagle v. United States, 742 F.3d 1079, 1082 (8th Cir.
2014). See also Yodprasit v. United States, 294 F.3d 966, 969 (8th Cir. 2002)
15

(the district court need not believe a petitioner’s bare assertion that he asked
counsel to file an appeal if the court finds evidence to the contrary more
credible).
In light of the court’s adoption of Mr. Diggins’ version of his
conversations with Mr. Weibel, the court finds that even if Mr. Weibel did ask
that an appeal be filed, Mr. Weibel did not clearly manifest his instructions to
his attorney. Nupdal, 666 F.3d at 1076.
Petitioner’s third objection is overruled.
4.

THE MAGISTRATE JUDGE ERRED IN CONCLUDING BARGER
APPLIED TO PETITIONER’S CASE
The magistrate judge compared the facts in this case to the facts in

Barger, 204 F.3d 1180. (Docket 47 at pp. 10-11). Mr. Weibel “objects to the
magistrate’s legal conclusion that the holding in Barger . . . applies to this
case.” (Docket 51 ¶ 5). He argues there is a “clear factual distinction
between” Barger and this case. Id. Mr. Weibel contends a “careful reading of
Barger” discloses that the “[c]ourt credited the testimony of the prior defense
lawyer who explained that after his final conference with his client that the
client ‘understood that no appeal was going to be filed, and it was my
understanding she had no objection to that at the time.’ ” Id. (citing Barger,
205 F.3d at 1181). Mr. Weibel submits that based on the attorney’s testimony
“the Barger Court went on to find that Barger had not clearly manifested an
intent to appeal.” Id. In contrast, Mr. Weibel argues that if the court finds

16

his “testimony credible, a clear manifestation of intent to appeal was
presented.” Id.
The court already concluded Mr. Weibel’s testimony is not credible when
compared to the testimony of Mr. Diggins. The petitioner’s “bare assertion” is
insufficient to sustain his burden of proof when the court finds Mr. Diggins’
testimony more credible. Barger, 204 F.3d at 1182. See also Nupdal, 666
F.3d at 1076; Walking Eagle, 742 F.3d at 1082; and Yodprasit, 294 F.3d at
969. The magistrate judge’s examination and application of Barger to
petitioner’s case is an appropriate analysis.
Petitioner’s fourth objection is overruled.
5.

THE MAGISTRATE JUDGE ERRED IN RECOMMENDING MR.
WEIBEL’S SIXTH AMENDMENT CLAIM SHOULD BE DISMISSED
WITH PREJUDICE
Based on his objections asserted above, Mr. Weibel objected to the

magistrate judge’s recommendation that his ineffective assistance of counsel
claim should be dismissed with prejudice. (Docket 51 ¶ 1). Having overruled
all of petitioner’s objections, the court finds the magistrate judge’s
recommendation is the appropriate resolution of Mr. Weibel’s 2255 Petition.
Petitioner’s fifth objection is overruled.
ORDER
Based on the above analysis, it is
ORDERED that petitioner’s objections (Docket 51) are overruled.

17

IT IS FURTHER ORDERED that the report and recommendation (Docket
47) is adopted consistent with this order.
IT IS FURTHER ORDERED that the petition (Docket 1) is dismissed with
prejudice.
IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 2253(c)(2) and
Rule 11 of the Rules Governing Section 2255 Cases in the United States
District Courts, the court issues a certificate of appealability specifically limited
to the issue of whether Mr. Diggins performed as effective counsel on the direct
appeal question.
As to all other issues raised in Mr. Weibel’s 2255 Petition the court
declines to issue a certificate of appealability. Although the court declines to
issue a certificate of appealability as to all other issues, Mr. Weibel may timely
seek a certificate of appealability from the United States Court of Appeals for
the Eighth Circuit under Fed. R. App. P. 22. See Rule 11(a) of the Rules
Governing Section 2255 Cases in the United States District Courts and Fed. R.
App. P. 22.
Dated April 8, 2020.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE

18