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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA,

Case No. 5:03cr13-RH

vs. Case No. 5:04cv230-RH/WCS

CESAR ESTRADA,

Defendant.

 /

SECOND REPORT AND RECOMMENDATION

A report and recommendation was previously entered and adopted. Docs. 259

and 261. As recommended, Defendant's claim regarding counsel's failure to file a

notice of appeal was remanded for further proceedings. Doc. 259, pp. 11-13; doc. 261,

p. 3. 

The first report and recommendation specifically noted that, prior to an

evidentiary hearing, Defendant should be required to set forth specific facts under

penalty of perjury in support of the remaining claim. Doc. 259, pp. 12-13. Defendant

filed a declaration under penalty of perjury, which also included his objections to the

report and recommendation. Doc. 260. 

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Case Nos. 5:03cr13-RH and 5:04cv230-RH/WCS

Upon remand to the undersigned, counsel was appointed, and a notice of

appearance was filed. Docs. 262 and 263. An evidentiary hearing was anticipated. 

Docs. 262 and 264. 

With the benefit of counsel, there were proceedings under seal. Docs. 265 and

268. Defense counsel then filed a motion to waive an evidentiary hearing. Doc. 266. 

He asks the court to rule on the merits of the pending § 2255 motion based on the

existing record. Id. 

Given the appointment of counsel and proceedings under seal, the motion to

waive should be granted and the § 2255 motion denied with prejudice as to all claims.

Standard of Review

The initial report and recommendation (doc. 259) is incorporated herein by

reference. The two prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), discussed there (doc. 259, pp. 3-4), applies in analyzing

an ineffective assistance of counsel claim for failure to file a notice of appeal. Roe v.

Flores-Ortega, 528 U.S. 470, 478, 120 S.Ct. 1029, 1034, 145 L.Ed.2d 985 (2000). See

also Gomez-Diaz v. United States, 433 F.3d 788, 791-792 (11th Cir. 2005) (discussing

Flores-Ortega). 

It is professionally unreasonable for an attorney to disregard specific instructions

to file a notice of appeal. 528 U.S. at 477, 120 S.Ct. at 1035 (citations omitted). If the

defendant did not clearly instruct counsel to file an appeal (or clearly instruct that an

appeal not be taken), then it must be determined whether counsel "consulted" with

defendant about an appeal; i.e., advised "about the advantages and disadvantages of

taking an appeal, and [made] a reasonable effort to discover the defendant's wishes." 

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Case Nos. 5:03cr13-RH and 5:04cv230-RH/WCS

528 U.S. at 478, 120 S.Ct. at 1035. If he consulted, "[c]ounsel performs in a

professionally unreasonable manner only by failing to follow the defendant's express

instructions with respect to an appeal." Id.

If counsel has not consulted with defendant about an appeal, then the court must

determine whether the failure to do so constitutes deficient performance. Id., at 479,

120 S.Ct. at 1036. The Supreme Court said the failure to consult about an appeal was

not necessarily deficient performance, and rejected a bright-line rule that counsel must

always consult with defendant regarding an appeal. Id., at 479-480, 120 S.Ct. at 1036. 

Where there is reason to believe either that a rational defendant would want to appeal,

or the defendant "reasonably demonstrated to counsel that he was interested in

appealing," then counsel performs deficiently by failing to consult with defendant about

an appeal. Id. at 480, 120 S.Ct. at 1036. 

If deficient performance for failure to consult is shown, Defendant must show

prejudice. "If the defendant cannot demonstrate that, but for counsel's deficient

performance, he would have appealed, counsel's deficient performance has not

deprived him of anything, and he is not entitled to relief." Id., at 484, 120 S.Ct. at 1038

(citation omitted). He must demonstrate "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." 528 U.S. at 484, 120 S.Ct. at 1038. "[W]hile the performance and prejudice

prongs may overlap, that are not in all cases coextensive." Id., at 486, 120 S.Ct. at

1039. "To prove deficient performance, a defendant can rely on evidence that he

sufficiently demonstrated to counsel his interest in an appeal. But such evidence is

insufficient to establish that, had the defendant received reasonable advice from

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1

 In his amended § 2255 motion, Defendant alleged that he wanted to appeal but

was transferred within two days – not two hours – of sentencing, could not reach

counsel, and counsel did not communicate with him. Doc. 231, p. 4. 

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counsel about the appeal, he would have instructed his counsel to file an appeal." Id.,

at 486, 120 S.Ct. at 1039.

Defendant was represented by Spiro Kypreos, who states by affidavit that:

The Defendant, Cesar Estrada, never requested me to file an appeal for

him in the case above. He never called me or wrote to me after his

sentencing to ask me to appeal or to check on the status of his alleged

request for an appeal. The only calls I received from him for the several

months since his sentencing were several calls from a California relative

asking me to call a DEA agent in Texas. 

Doc. 247 Att. 2, p. 1. Defendant responded that counsel did not say in his affidavit that

they ever discussed taking an appeal, and argues that this was ineffective per se

because the court told them to discuss this issue. Doc. 259, pp. 11-12 (citing

Defendant's reply, doc. 250).

In his declaration under perjury, Defendant Estrada asserts that counsel

"abandoned me after the sentencing hearing on October 14, 2003." Doc. 260, p. 1. He

asserts that "[a]t the end of sentencing, I [asked counsel] to see me before he left the

court house." Id. Defendant "feel[s]" that counsel "had an obligation to discuss an

appeal with me in light of the difference in the sentence as I understood it," and the

judge advised counsel to discuss an appeal with Defendant but counsel did not. Id.

Defendant states that he was transferred within two hours of the sentencing hearing; he

was jailed in Panama City (where he was sentenced) "for two hours which was

insufficient for me to reach counsel," whose office was in Pensacola. Id.1

 Defendant

claims his transfer prevented him from contacting counsel, and he did not have access

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to his papers or contact information during the ten day period for filing a notice of

appeal. Id. 

Defendant states that he "fully intended to appeal and it was the duty of counsel

not only to tell me my options and how to proceed but to contact me where I was as he

was in a better position to contact me [than] I could." Id., p. 2. Defendant makes the

argument that "[i]f the Court was confused with my possible sentence, why should I not

be confused especially when the sentence mentioned was 10 years not in excess of

more than 20 years I received." Id. Since "[c]ounsel knew this problem," Defendant

claims, he "should have appealed the sentence without any more on my part, although I

definitely wanted to appeal." Id.

In discussing the deficient performance analysis, the Court in Flores-Ortega

noted that counsel would not be professionally unreasonable for failing to consult about

an appeal where, for example, counsel anticipated a two year sentence on entry of a

plea, defendant seemed satisfied and entered a plea, and then in fact received a two

year sentence. 528 U.S. at 1036, 120 S.Ct. at 479. The Court continued: 

Or, for example, suppose a sentencing court's instructions to a defendant

about his appeal rights in a particular case are so clear and informative as

to substitute for counsel's duty to consult. In some cases, counsel might

then reasonably decide that he need not repeat that information. 

Id., at 479-480, 120 S.Ct. at 1036. 

Both hypothetical sets of circumstances were present here. Defendant was

advised by counsel about a month before rearraignment that, based on a "low ball"

estimate of the quantity of drugs the Government could prove and Defendant's criminal

history category, "you face 235 to 295 months in federal prison (19.6 to 24.6 years) –

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2

 References are to the pages assigned in the electronic docket. The first report

and recommendation discussed this and other letters from counsel. Doc. 259, pp. 6-8. 

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and in the federal system you do nearly day for day on a sentence." Doc. 247, Att. 2,

pp. 3-4 (counsel's letter dated June 18, 2003).2 Defendant was advised that his "best

hope" was to plead early and cooperate with the Government toward a substantial

assistance motion, as well as a three level reduction if he entered his plea early enough. 

Id., p. 4. In his hand delivered letter of July 11, 2003, counsel told Defendant his choice

was to "[g]o to trial or plead straight up and cooperate with the government." Id., p. 5. 

Counsel acknowledged it was "scary" to enter a plea facing "at least 20 years under the

guidelines (the minimum may end up being higher), and a maximum of life," but that

"the alternative is worse." Id. Counsel repeated to the court at rearraignment that he

advised Defendant he was looking at a guidelines sentence of at least twenty years. 

Doc. 246, p. 29. 

This was all noted in the first report and recommendation with regard to

Defendant's claim that counsel failed to advise him the sentence would be longer than

ten years. Doc. 259, pp. 5-11. The undersigned noted a potential point of confusion in

the rearraignment transcript as to whether the court advised Defendant that it was not

anticipated the sentence would exceed ten years. Doc. 259, p. 10. In context, it was

found that even if the one statement of the court could have caused confusion, it was

plainly clarified both before and after that a sentence of much more than ten years was

anticipated. Id., pp. 10-11. 

The district judge has since clarified the record on this point. See docs. 261 and

267 (order clarifying record, quoting doc. 261 at length). After listening to the court

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reporter's audiotape, the court found "[t]he audiotape makes clear that Mr. Estrada was

told the guidelines range would likely exceed ten years, unless there were extraordinary

circumstances, which I wouldn't anticipate." Doc. 267, p. 4. 

It is therefore the case here, like the example given in Flores-Ortega, that

Defendant entered a guilty plea with a clear understanding of his sentence, and he

received the anticipated sentence. Indeed, this case is even clearer than the

hypothetical, because – rather than anticipating a precise sentence and receiving it–

Defendant anticipated a "low ball" sentencing range of 235 to 295 months, and in fact

was sentenced to the very bottom of this "low ball" range. 

After sentence was imposed, the court advised Defendant that he had the right to

appeal. Doc. 242, pp. 48-49.

Any appeal has to be filed within the next ten days. If you are unable to

afford a lawyer for an appeal, then a lawyer would be appointed for you. 

The clerk of the court will file a notice of appeal for you at your request. 

You just need to make sure, if you want to appeal, a notice gets filed

within the next ten days.

 

You should talk with your lawyer right now today, as soon as we break, to

make sure that he has a clear understanding of whether you do or do not

wish to appeal, and what his role will be in that connection. 

Id., p. 49. Like the second example offered in Flores-Ortega, the court gave very clear

instructions regarding the right to appeal. 

Combining these circumstances, Defendant received the best sentence he could

reasonably have hoped for or anticipated absent cooperation with the Government. The

court also gave very clear instructions to Defendant that he had to file an appeal within

ten days, the clerk could even file it for him, and was told "[y]ou just need to make sure,

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if you want to appeal, a notice gets filed within the next ten days," and "[y]ou should talk

with your lawyer right now today" to make sure counsel knew his wishes (emphasis

added). Particularly given the continuing prospect of providing substantial assistance to

the Government, it was not professionally unreasonable of counsel to fail to consult with

Defendant about whether he wanted to appeal. 

Given the failure to demonstrate deficient performance, the court not reach the

prejudice inquiry. It is noted however that, while Defendant now claims he wanted to

appeal, he made no attempt to contact the court between his sentencing on October 14,

2003, and his initial § 2255 motion dated September 1, 2004. Doc. 227. He knew he

had ten days to appeal. Even if Defendant could not reach counsel within that time, and

lacked access any legal paperwork in that time, he knew the clerk could file a notice for

him and that he was entitled to appointed counsel if he could not afford counsel. The

address of the clerk would have been readily available to Defendant through the United

States Marshall or prison officials, yet Defendant did not contact the court until he filed

his § 2255 motion over ten months after sentencing. This undermines his claim that but

for counsel's failure to consult with him he would have taken an appeal. But this is a

credibility determination, a hearing has been waived by Defendant, and it is

unnecessary to decide as deficient performance by counsel is not shown on the

undisputed facts of record. 

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It is therefore respectfully RECOMMENDED that Defendant's motion to waive an

evidentiary hearing (doc. 266) be GRANTED, and Defendant's amended § 2255 motion

(doc. 231) be DENIED WITH PREJUDICE in its entirety. 

IN CHAMBERS at Tallahassee, Florida, on August 29, 2006.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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