United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE
cause is before the Court on the Motion to Vacate, Set Aside,
or Correct Sentence (“Motion to Vacate, ” Doc. 1)
filed by Petitioner pursuant to 28 U.S.C. § 2255. The
Government filed a Response in Opposition to the Motion to
Vacate (“Response, ” Doc. 4) in compliance with
this Court's instructions and with the Rules
Governing Section 2255 Proceedings for the United States
District Courts. Petitioner filed a Reply (Doc. 5) and
an Amended Reply (Doc. 9) to the Response. For the following
reasons, the Motion to Vacate is denied.
Jury charged Petitioner and two other individuals in a
twenty-four count Indictment with the commission of various
crimes. (Criminal Case No. 6:14-cr-84-Orl-31KRS, Doc.
Petitioner entered into a Plea Agreement (Criminal Case Doc.
45) in which he agreed to enter a guilty plea to Count One of
the Indictment (conspiracy to defraud the United States).
Petitioner entered his plea before Magistrate Judge Karla R.
Spaulding, who filed a Report and Recommendation Concerning
Plea of Guilty (Criminal Case Doc. 51) recommending that the
Plea Agreement and the guilty plea be accepted and that
Petitioner be adjudged guilty and have sentence imposed
Court then entered an Acceptance of Plea of Guilty and
Adjudication of Guilt (Criminal Case Doc. 59) in which the
guilty plea was accepted and Petitioner was adjudicated
guilty of the offense. On December 9, 2014, the Court entered
a Judgment in a Criminal Case (Criminal Case Doc. 94) in
which Petitioner was sentenced to imprisonment for a term of
40 months, to be followed by supervised release for a period
of two years. Petitioner did not file a direct appeal.
2255 permits a federal prisoner to bring a collateral
challenge by moving the sentencing court to vacate, set
aside, or correct the sentence. 28 U.S.C. § 2255(a).
“A petitioner is entitled to an evidentiary hearing if
he “alleges facts that, if true, would entitle him to
relief.” Rosin v. United States, 786 F.3d 873,
877 (11th Cir. 2015) (citation and quotation omitted).
However, “a defendant must support his allegations with
at least a proffer of some credible supporting
evidence.” United States v. Marsh, 548
F.Supp.2d 1295, 1301 (N.D. Fla. 2008). The Court “is
not required to grant a petitioner an evidentiary hearing if
the § 2255 motion and the files and records of the case
conclusively show that the prisoner is entitled to no
relief.” Rosin, 786 F.3d at 877 (citation and
was represented by Stephen J. Langs. Petitioner contends that
“he requested counsel to appeal and counsel refused to
do so.” (Doc. 1 at 19). Petitioner states that counsel
was ineffective because “[c]ounsel had a duty to pursue
the Petitioner's Appeal rights upon Petitioner's
request.” (Doc. 9 at 2). The Government submitted the
affidavit of Langs, who stated that he discussed filing an
appeal with Petitioner, that Petitioner
“specifically” told him not to file a notice of
appeal, and that, therefore, he did not file a notice of
appeal “per [Petitioner's] direction.” (Doc.
4 at 38). Langs also submitted a letter he sent to Petitioner
dated December 19, 2014, in which he confirmed
Petitioner's decision not to pursue an appeal.
(Id. at 53).
well-settled that “a lawyer who disregards specific
instructions from the defendant to file a notice of appeal
acts in a manner that is professionally unreasonable.”
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)
(citations omitted). In such a case, prejudice is presumed,
and the petitioner is entitled to a new appeal without
showing that his appeal would likely have merit. See
Id. at 483 (“The . . . denial of the entire
judicial proceeding itself, which a defendant wanted at the
time and to which he had a right, . . . demands a presumption
of prejudice.”); Peguero v. United States, 526
U.S. 23, 28 (1999) (“[W]hen counsel fails to file a
requested appeal, a defendant is entitled to [a new] appeal
without showing that his appeal would likely have had
merit.”); Rodriguez v. United States, 395 U.S.
327, 329-30 (1969) (finding that a defendant who instructed
counsel to perfect an appeal thereby objectively indicated
his intent to appeal and was entitled to a new appeal upon
counsel's failure to perfect an appeal without any
addition to the duty to file a requested appeal, counsel must
consult with a client about an appeal when either: (1) any
rational defendant would want to appeal; or (2) the client
reasonably demonstrated an interest in appealing.
Flores-Ortega, 528 U.S. at 480. If a duty to consult
exists, counsel must fulfill that duty by “advising the
defendant about the advantages and disadvantages of taking an
appeal, and making a reasonable effort to discover the
defendant's wishes.” Id. at 478; see
also Devine v. United States, 520 F.3d 1286, 1288 (11th
Cir. 2008) (noting “even if the client does not
directly request an appeal, counsel generally has a duty to
consult with him about an appeal.”). If counsel fails
to satisfy the duty to consult, a petitioner is entitled to
an out-of-time appeal only if he establishes prejudice by
demonstrating “that there is 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.
was sentenced on December 8, 2014. Petitioner maintains that
he requested his Langs to file an appeal and that the request
was disregarded. It is undisputed that Langs did not file a
notice of appeal on Petitioner's behalf.
affidavit, Langs recounted pre-sentencing conversations with
Petitioner regarding Petitioner's sentence and the
possibility of appeal. (Doc. 4 at 37). Further, immediately
after sentencing, Langs recalled discussing with Petitioner
his appellate rights. (Id. at 38). Langs advised
Petitioner against filing an appeal, and Petitioner was in
agreement that he should not appeal his sentence.