RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 11a0041p.06 

### UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

_________________
U NITED S TATES OF A MERICA , Plaintiff-Appellee/Cross-Appellant ,

v. S HAWN P AUL D OYLE , Defendant-Appellant/Cross-Appellee

. X - - - -> , - - - N Nos. 09-3003/3102

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 05-00005-001—S. Arthur Spiegel, District Judge. Decided and Filed: February 9, 2011 Before: MARTIN, NORRIS, and COOK, Circuit Judges.

_________________ COUNSEL ON BRIEF: Ravert J. Clark, Cincinnati, Ohio, for Appellant. Benjamin C. Glassman, ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.

_________________ OPINION

_________________ COOK, Circuit Judge. A year after pleading guilty to drug charges, DefendantAppellant Shawn Doyle moved to vacate his sentence for ineffective assistance of counsel. Though the court denied the underlying ineffective assistance claim, it nonetheless granted the motion and resentenced Doyle. He now asks us to review his resentencing hearing, alleging that the court impermissibly felt itself bound to reinstate his original sentence. The government cro ss-appeals, arguing that because the district court rejected Doyle’s ineffective assistance cl aim, it lacked the authority to set aside his

1Nos. 09-3003/3102 United States v. Doyle Page 2
sentence. We agree with the government. We accordingly vacate the district court’s order granting Doyle’s § 2255 motion and reinstate his original sentence. I. Background In early 2005 a federal grand jury indi cted Doyle on two counts of possession of crack cocaine with intent to distribute. Doyle pleaded guilty to one count in exchange for dismissal of the other. Based upon Doyle’s assistance in ongoing criminal investigations, the government moved for a § 5K1.1 downward departure, resulting in a sentencing guidelines range of 140–175 months , and stated that it might seek a Rule 35 post-sentencing reduction for Doyle’s conti nued cooperation. The district court then sentenced Doyle to 140 months’ imprisonment. From prison in the ensuing year, Doyle moved to vacate his sentence, alleging that he “explicitly instructed his counsel to in stitute an appeal, but the attorney failed and refused to do so.” Though the district court denied the motion, this court granted Doyle a certificate of appealability and remanded the case for an evidentiary hearing to determine “whether trial counsel did not filea notice of appeal de spite a request to do so.” Doyle v. United States , No. 07-3425, at 2 (6th Cir. July 29, 2008) (order granting certificate of appealability). At the evidentiary hearing, both Doyle and his attorney testified that they discussed an appeal. Doyle then admitted th at, contrary to the claims in his motion to vacate, he did not instruct his attorney to file a no tice of appeal. Instead, in the days following his sentencing, his lawyer told him he “still [had] a shot at the Rule 35,” and warned that an appeal might “make the pr osecution mad.” After a “lengthy discussion,” they made a “tactical decision” not to appeal . With the benefit of this evidence, the district court predictably ruled against Doyle on his ineffective assistance claim, but then unpredictably proceeded to grant the § 2255 mo tion nevertheless, explaining that it was “in the interests of justice for the Court to resentence Defendant, and therefore allow him the opportunity to appeal should he so decide.” United States v. Doyle , No. 1:05-CR-005, at 1–2 (S.D. Ohio Nov. 20, 2008) (order granting motion to vacate).Nos. 09-3003/3102 United States v. Doyle Page 3

1 Because our determination of the government’s cross-appeal renders Doyle’s own appeal moot, we do not reach the merits of his claim. At resentencing, the court again sentenced Doyle to 140 months. Doyle’s attorney immediately filed the instant appeal , claiming that the c ourt overlooked Doyle’s post-sentencing rehabilitation and erroneouslyfound itself bound to reinstate the original sentence. The government then cross-appealed. II. Analysis The government argues that because the district court found “no basis to conclude that [Doyle’s] Counsel was ineffective,” id . at 1, it lacked grounds for granting Doyle’s motion to vacate. We agree. 1 “In reviewing the denial [or grant] of a 28 U.S.C. § 2255 motion, we apply a de novo standard of review to the legal issues and uphold the factual findings of the district court unless they are clearly erroneous.” Hamblen v. United States , 591 F.3d 471, 473 (6th Cir. 2009). Ineffective assistance of c ounsel claims are mixed questions of law and fact, which appellate courts review de novo. Mapes v. Tate , 388 F.3d 187, 190 (6th Cir. 2004). “A motion brought under § 2255 must allege one of three bases as a threshold standard: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Weinberger v. United States , 268 F.3d 346, 351 (6th Cir. 2001) (citing United States v. Addonizio , 442 U.S. 178, 185–86 (1979)). Ineffective assistance of counsel claims fall within the first of these three categories. See Pough v. United States , 442 F.3d 959, 964 (6th Cir. 2006); Griffin v. United States , 330 F.3d 733, 736 (6th Cir. 2003).
To establish a claim of ineffective assi stance of counsel, a defendant must prove that his counsel’s performance fell below an objective standard of reasonableness, Strickland v. Washington , 466 U.S. 668, 687–88 (1984), and that this performance prejudiced the defendant’s case, id . at 694. “[A] lawyer who disregards specificNos. 09-3003/3102 United States v. Doyle Page 4
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). Where the defendant does not instruct counsel to f ile an appeal, however, the court must ask “whether counsel in fact consulted with the defendant about an appeal,” which entails “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to disc over the defendant’s wishes.” Id . at 478. If counsel consults with his client, he “performs in a professionally unreasonable manner onlyby failing to follow the defendant’s express instructions with respect to an appeal.” Id

. (emphasis added). The district court’s key factual findings accord with Doyle’s testimony from the evidentiary hearing; they are not clearly erroneous. Namely, the court determined that Doyle knew of his right to appeal, Doyle’s counsel discussed with him at length the merits of an appeal, and Doyle did not instruct his counsel to file a notice of appeal. Our application of Flores-Ortegais thus clear: because counsel consulted with Doyle about an appeal and Doyle never instructed hi m to appeal, counsel’s performance was not unreasonable. Doyle’s ineffective assistance claim thus fails the Strickland test, and he cannot show the “error of constitutional magn itude” necessary for him to prevail on the motion to vacate. The district court had no basis upon which to set aside Doyle’s sentence. III. Conclusion We vacate the district court’s order gr anting Doyle’s § 2255 motion and reinstate his original sentence.