RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0227p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TIMOTHY JAMES NEILL, JR.,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

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No. 18-5350

Appeal from the United States District Court

for the Middle District of Tennessee at Cookeville.

Nos. 2:11-cr-00001-5; 2:14-cv-00013—Waverly D. Crenshaw, Jr., District Judge.

Decided and Filed: September 5, 2019

Before: DONALD, LARSEN, and NALBANDIAN, Circuit Judges

_________________

COUNSEL

ON BRIEF: Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for 

Appellant. Cecil W. VanDevender, UNITED STATES ATTORNEY’S OFFICE, Nashville, 

Tennessee, for Appellee.

_________________

OPINION

_________________

BERNICE BOUIE DONALD, Circuit Judge. In 2011, Timothy Neill, Jr. (“Neill”) 

pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He 

was sentenced to ninety-two months imprisonment, and on advice of counsel, he decided not to 

pursue an appeal. Neill subsequently filed a motion to vacate, set aside, or correct his sentence 

under 28 U.S.C. § 2255, arguing, among other things, that he had received ineffective assistance 

of counsel in regard to his appellate strategy. The district court denied his § 2255 motion and, 

>
No. 18-5350 Neill v. United States Page 2

later, denied a motion for reconsideration of his ineffective assistance of counsel claim. After 

denying the motion for reconsideration, however, the district court issued a certificate of 

appealability because reasonable jurists could disagree with its disposition of Neill’s claim for 

ineffective assistance. For the following reasons, we AFFIRM.

I.

Neill has a lengthy criminal record, including multiple felonies. In 2010, he was on 

parole with the state of Tennessee, and in June of that year, he was photographed holding a 

semiautomatic rifle. As part of a federal investigation into gun trafficking, authorities discovered 

the photograph. On January 20, 2011, the state of Tennessee revoked his parole and took him 

into custody, imposing a sentence of more than forty-two months for the violation. 

On March 2, 2011, based on the same photograph, he was indicted by federal agents for 

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Soon thereafter, he 

was transferred to federal custody and pleaded guilty on September 12, 2011. His sentencing 

was delayed for reasons that are not pertinent here, but he was eventually scheduled to be 

sentenced on January 11, 2013, approximately twenty-two months later. During the intervening 

period, he was transferred back to state custody for nine months so that he could “earn 

behavioral and program credits, which [could] shorten the length [of his sentence].” Thus, he 

spent thirteen months in federal custody prior to being sentenced.

In preparation for Neill’s federal sentencing, the probation office prepared a Presentence 

Investigation Report (“PSR”). According to the PSR, Neill had twenty-two criminal history 

points, establishing a criminal history category of VI, the highest category in the Sentencing 

Guidelines. His base offense level was twenty-three, which led to a Guidelines sentence range of 

92 to 115 months. 

During his sentencing hearing, defense counsel Benjamin Perry lodged numerous 

objections, all of which were overruled. The district court adopted the recommended findings in 

the PSR and sentenced Neill to ninety-two months imprisonment, to run consecutive to his state 

sentence for the parole violation. 
No. 18-5350 Neill v. United States Page 3

Notably, in imposing the sentence, the judge stated,

As to the sentence in this case, given the dangerousness of the underlying 

conduct and the Criminal History Category VI, which is as high as you can get, 

the Court will be inclined to sentence toward the high end of the guideline, but the 

Court takes into account your efforts to change, your concerns about your

daughter which [have] changed [you] a bit.

The Court also wants to remind you that if you continue to do as you are 

currently that you will likely receive 54 days of good time credits, which will take 

off more than 14 months of your sentence which would be [an] effective federal 

sentence of about 76 or 78 months. You will get credit for the time you have been 

in custody so you will get an additional reduction on that. So considering the net 

effect of the sentence imposed by the Court, I don’t believe the sentence is greater 

than necessary.

Neill contends the court’s statement was in error because the court assumed he would 

receive credit against his federal sentence for the time he spent in federal custody prior to being 

sentenced. However, because Neill received credit on his state sentence for those thirteen 

months, he could not receive credit on his federal sentence as well. See 18 U.S.C. § 3585(b). 

Thus, Neill’s position is that the court intended to sentence him to ninety-two months minus the 

thirteen months he had already spent in federal custody. Perry did not object to the court’s 

statements, and the court entered a final judgment four days later, on January 15, 2013. 

After the sentencing hearing, Perry consulted with Neill in regard to Neill’s appellate 

strategy. Perry advised Neill that his best chance on appeal was to challenge a factual finding 

that concerned the number of bullets the magazine in the gun could hold. But Perry informed 

Neill that factual findings were difficult to overturn on appeal and that, even if he were 

successful, a sentence of ninety-two months would likely be within his new Guidelines range. 

As to the possible disadvantages of an appeal, Perry informed Neill that the PSR did not 

list two of Neill’s previous felonies, one for prescription fraud and the other for identity theft. 

Perry cautioned Neill that the felonies could be found if his case were remanded, which could 

lead the court to vary to the higher end of the Guidelines range at a resentencing. Perry was also 

concerned that the district court would choose to run Neill’s federal sentence consecutive to 

those from the undisclosed felonies, adding to the cumulative amount of time he would be 

imprisoned. Additionally, Perry advised Neill that the prescription-fraud felony could qualify 
No. 18-5350 Neill v. United States Page 4

him as an Armed Career Criminal, which would subject him to a mandatory minimum fifteenyear sentence. Finally, Perry did not inform Neill that he could, or should, challenge the court’s 

alleged error that he would receive credit on his federal sentence for his time spent in federal 

custody prior to being sentenced. Neill claims that he decided not to pursue an appeal based on 

Perry’s advice. 

After being paroled into federal custody in August 2013, Neill noted that he had not

received credit against his federal sentence for his time spent in federal custody prior to being 

sentenced. In October 2013, Neill filed a pro se motion under Federal Rule of Criminal 

Procedure 36, seeking to correct an error in the judgment so that he would receive that credit. 

See Fed. R. Crim. P. 36 (allowing a court to “correct a clerical error in a judgment, order, or 

other part of the record, or correct an error in the record arising from an oversight or 

omission[]”). The court denied the motion without prejudice because Neill was represented by 

counsel, but counsel had not filed the motion. 

Perry did not file a Rule 36 motion on Neill’s behalf, though, because, around this time, 

Neill had also filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. 

In his motion, Neill alleged, among other things, that Perry had provided ineffective assistance 

based on his advice not to appeal. Upon learning of Neill’s ineffective-assistance claim, Perry 

was allowed to withdraw, and the court appointed Neill another public defender. 

In July 2014, Neill’s new attorney filed a motion under Federal Rule of Criminal 

Procedure 36 to amend or correct the judgment, arguing that there was an error because Neill did 

not receive credit on his federal sentence.1 The district court denied the Rule 36 motion, opining 

that “there was no clerical error or oversight. The Judgment is consistent with the Court’s oral 

pronouncement at the . . . sentencing hearing.” 

As for Neill’s § 2255 motion, the district court held an evidentiary hearing on June 29, 

2015. At the hearing, Neill and Perry testified to the above-summarized facts. 

 

1He also filed an amended § 2255 motion.
No. 18-5350 Neill v. United States Page 5

On January 13, 2017, the court denied Neill’s § 2255 motion. Instead of entering a final 

judgment, the district court administratively closed the case because Neill had a claim that was 

dependent on the outcome of Beckles v. United States, 137 S. Ct. 886 (2017), which had not yet 

been published by the Supreme Court. 

On January 23, 2018, after Beckles had been published, Neill moved the court to reopen 

his case and to reconsider his ineffective assistance of counsel claim.2 The court granted the 

motion but, again, denied the ineffective assistance claim, holding that Perry had a valid trial 

strategy, even if he was mistaken about Neill possibly being sentenced as an Armed Career 

Criminal for the prescription-drug felony. The district court also found that Neill could show no 

prejudice because the sentencing judge had already denied Neill’s argument that the judge had 

intended for Neill to receive thirteen months of credit on his federal sentence. This time, 

however, the court issued a certificate of appealability, finding that reasonable jurists could 

disagree whether Neill received ineffective assistance 

[b]ased on the sentencing judge’s comments that Neill would be eligible for 

twenty-two months of pretrial detention credit, Neill’s counsel’s failure to object 

to those comments, and Neill’s counsel’s erroneous belief that the prescription 

fraud sentence could lead to Neill being classified as an Armed Career Criminal 

upon a possible remand after appeal[.]

On appeal, Neill argues Perry was ineffective because he did not adequately advise him 

of the advantages and disadvantages of appeal, and “[h]ad [Neill] been given accurate advice, 

there would . . . have been at least a reasonable probability that he would have appealed.” 

Specifically, Neill submits three arguments. First, Neill alleges that Perry’s advice was deficient 

because he did not inform Neill that Neill should have appealed based on the sentencing judge’s 

statement that he would receive credit for his time spent in federal custody prior to being 

sentenced. Neill then asserts that Perry’s concerns based on Neill being sentenced as an Armed 

Career Criminal and the risk of additional consecutive sentences were groundless and objectively 

unreasonable. Finally, Neill concedes that the judge could have imposed a longer sentence if he 

 

2Chief Judge William J. Haynes, Jr. originally presided over both Neill’s criminal case and his § 2255 

motion. On September 16, 2016, however, Neill’s criminal case was transferred to Chief Judge Waverly D. 

Crenshaw, Jr. On August 2, 2017, Neill’s § 2255 motion was assigned to Judge Crenshaw, Jr. as well.
No. 18-5350 Neill v. United States Page 6

would have known about his additional criminal history, but Neill argues that is a “weak reason 

to refrain from appealing.” 

We begin by addressing the correct standard of review and then proceed to the merits of 

Neill’s claims.

II.

“We review de novo a district court’s denial of a § 2255 motion, and examine a district 

court’s factual findings for clear error.” Mallett v. United States, 334 F.3d 491, 497 (6th Cir. 

2003) (citing Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003)). “Ineffective assistance 

of counsel claims are mixed questions of law and fact that are reviewed de novo.” United States 

v. Carter, 355 F.3d 920, 924 (6th Cir. 2004) (citing United States v. Fortson, 194 F.3d 730, 736 

(6th Cir. 1999)). 

A.

Neill’s argument, put succinctly, is that Perry gave him objectively unreasonable advice, 

which, when accepted by Neill, deprived him of the opportunity to appeal. As in any ineffective 

assistance of counsel claim, we have two questions to answer: (1) whether Perry’s advice was 

objectively unreasonable, and (2) if so, whether Neill was prejudiced such that he is entitled to 

relief. See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Before we reach the merits 

of Neill’s claims, however, we need to examine the more discrete issue of how Roe v. FloresOrtega, 528 U.S. 470 (2000), which applied Strickland to a case involving counsel’s 

unconsented failure to file a notice of appeal, affects this case. Neill argues that this case fits 

comfortably under Flores-Ortega. We disagree.

In Flores-Ortega, the Supreme Court made two holdings. First, an attorney is per se

ineffective if she disregards a defendant’s express instructions to file an appeal. Id. Neill did not 

instruct Perry to file an appeal, so this holding does not apply. 

Second, “[i]n those cases where the defendant neither instructs counsel to file an appeal 

nor asks that an appeal not be taken, . . . the question [is] . . . whether counsel in fact consulted 

with the defendant about an appeal.” Id. at 478. In this context, “consult” means to advise “the 
No. 18-5350 Neill v. United States Page 7

defendant about the advantages and disadvantages of taking an appeal, and [to] mak[e] a 

reasonable effort to discover the defendant’s wishes.” Id. at 478. However, counsel only has a 

constitutional duty to consult when “a rational defendant would want to appeal . . ., or 

[when] . . . this particular defendant reasonably demonstrated to counsel that he was interested in 

appealing.” Id. at 480. In all cases, though, “courts must ‘judge the reasonableness of counsel’s 

challenged conduct on the facts of the particular case, viewed as of the time of counsel’s 

conduct,’ and ‘judicial scrutiny of counsel’s performance must be highly deferential[.]’” Id. at 

477 (quoting Strickland, 466 U.S. at 689-90) (internal citations omitted). 

It is undisputed that Perry consulted with Neill after sentencing, and Neill ultimately 

decided not to appeal. The first issue, then, is whether Flores-Ortega extends to a situation like 

this one, where a defendant expressly declines to appeal but alleges he based the decision on 

counsel’s unreasonable advice. The government’s position is no. It posits that, once we 

determine a consultation occurred, that ends the matter; a court may not look into the advice 

given during the consultation. Of course, this would foreclose all challenges like the one 

presented here. The government’s argument derives from dicta in Flores-Ortega, where the 

Court opined,

We have long held that a lawyer who disregards specific instructions from the 

defendant to file a notice of appeal acts in a manner that is professionally 

unreasonable. . . . 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.

528 U.S. at 477. (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)). The government contends 

that these two statements represent the exclusive reach of Flores-Ortega: either an attorney 

disregards his client’s demand to file an appeal and is thus ineffective, or a client instructs his 

attorney not to file an appeal—regardless of what advice the attorney may have provided the 

client—and the client is forbidden from making an ineffective assistance of counsel claim. 

We are skeptical of the government’s argument. Its position seemingly invites precisely 

what the Supreme Court counseled against in both Flores-Ortega and Strickland—imposing a 

bright-line rule in an ineffective-assistance claim without looking to the particular facts of the 

case. See Flores-Ortega, 528 U.S. at 478 (“We reject this per se rule as inconsistent 
No. 18-5350 Neill v. United States Page 8

with Strickland’s holding that ‘the performance inquiry must be whether counsel’s assistance 

was reasonable considering all the circumstances.’ The Court of Appeals failed to engage in the 

circumstance-specific reasonableness inquiry required by Strickland, and that alone mandates 

vacatur and remand.”). Moreover, it seems that accepting the government’s argument would 

mean licensing attorneys to give unreasonable advice at a critical stage in the proceedings, 

leaving the defendant with no recourse.3 Id. at 483. It is difficult to see how Strickland and its 

progeny can support this argument. Nevertheless, we need not resolve this issue because this 

case hinges entirely on Neill’s failure to show prejudice.

In Flores-Ortega, the Court held that it will presume prejudice in an ineffective 

assistance claim if a defendant can establish a reasonable probability “that, but for counsel’s 

deficient performance, he would have appealed.” Id. at 471, 484. The Court did not require a 

showing of actual prejudice—in other words, that the defendant would have prevailed on 

appeal—because “the denial of [an] entire judicial proceeding itself, which a defendant wanted at 

the time and to which he had a right, . . . demands a presumption of prejudice.” Id. at 483.

Neill’s claim presents precisely this issue. Therefore, as instructed by Flores-Ortega, we 

will presume prejudice if Neill can establish that, but for Perry’s allegedly deficient advice, there 

is a reasonable probability he would have appealed. 

With the proper legal standards in mind, we analyze the merits of Neill’s claims.

 

3We pause here to briefly address the government’s contention that prior Sixth Circuit precedent supports 

its position. The government cites six cases, but all are distinguishable based on the key dispute here. In none of 

those cases did we address an allegation that counsel’s objectively unreasonable advice caused the defendant to 

forego an appeal. See Galvin-Garcia v. United States, 591 F. App’x 463, 464 (6th Cir. 2015); United States v. 

Doyle, 631 F.3d 815, 818 (6th Cir. 2011); Higbee v. United States, 20 F. App’x 465, 466 (6th Cir. 2011); Shelton v. 

United States, 378 F. App’x 536, 539 (6th Cir. 2010); Regalado v. United States, 334 F.3d 520, 526 (6th Cir. 2003); 

Spence v. United States, 68 F. App’x 669, 671 (6th Cir. 2003). Therefore, they are inapposite. The government 

does, however, cite one unreported case from the Eleventh Circuit that declined to look into the adequacy of 

counsel’s consultation. See Stephen v. United States, 706 F. App’x 954 (11th Cir. 2017) (per curiam). Simply put, 

we disagree. There, the Eleventh Circuit chose not to not look into the particular facts of the case and, instead, 

imposed precisely the type of bright-line rule that the Supreme Court has warned against.
No. 18-5350 Neill v. United States Page 9

B.

Neill cannot prevail because, even if we assume that Perry provided deficient advice, 

Neill has not established a reasonable probability that he would have appealed had he received 

competent advice from Perry. 

In determining whether a defendant has demonstrated that he would have taken an appeal 

had he not received unreasonable advice, we must consider several factors specific to that 

defendant, including the likelihood of success in the appeal, the potential consequences the 

defendant would have faced had he pursued the appeal, and any underlying evidence of the 

defendant’s state of mind at the time he decided not to appeal. See Lee v. United States, 137 S. 

Ct. 1958, 1965-69 (2017). For instance, in Lee, a legal permanent resident from South Korea 

was charged with a crime that subjected him to mandatory deportation if convicted. Id. at 1962-

63. Lee’s counsel, when advising him of the potential consequences of accepting a plea 

agreement, incorrectly assured him that he would not be deported following a conviction—a fact 

that was of “paramount importance” to Lee and that was the “determinative issue” in his 

deciding whether to accept a plea. Id. at 1967–68. Indeed, during the plea colloquy, the district 

court asked Lee if the fact that his plea could result in his deportation affected his decision, and 

Lee responded with “Yes, Your Honor,” before his counsel took him aside and told Lee that it

was simply a “standard warning.” Id. at 1968. After learning that he was going to be deported 

as a result of his conviction, Lee filed a § 2255 petition, arguing that he would have rather gone 

to trial and fought the charge to avoid deportation, even though “his prospects of acquittal at trial 

were grim.” See id at 1963, 65. Taking all of the evidence into account, the Supreme Court 

granted relief, finding that, in Lee’s specific case, he demonstrated that he would have risked a 

trial had he been correctly informed of the immigration consequences of a conviction. Id. at 

1968-69.

In this case, Neill has not demonstrated that he would have appealed his sentence had he 

been given competent advice. To begin, there is nothing in the record that suggests Neill wished 

to appeal for any reason other than the possibility of receiving a shortened sentence. Therefore, 

the predominant factor in our analysis is the likelihood (as it would have appeared to Neill at the 

time he took his appeal decision) that he would have been better off had he appealed. Lee, 137 
No. 18-5350 Neill v. United States Page 10

S. Ct. at 1965-66. He almost certainly would not have been better off. The thrust of Neill’s 

argument is that his actual sentence did not reflect what the sentencing judge intended to impose. 

However, in ruling on the Federal Rule of Civil Procedure 36 motion, the sentencing judge 

expressly affirmed that the judgment reflected the court’s intended sentence. Thus, if Neill had 

pursued this claim on appeal, his likelihood of success would have been, at best, questionable. 

Further, and more pertinently, even if Neill were to succeed on this claim now, the record shows 

that there is a strong chance he would receive a lengthier—not shorter—sentence on remand. 

Neill admits that the PSR did not capture two additional felonies he had committed, and the 

sentencing judge specifically stated that he would generally sentence someone at Neill’s criminal 

history category closer to the top-end of the Guidelines range. 

Neill’s only response is that the sentencing judge would want to be consistent, and a 

harsher sentence would be presumed vindictive. In so arguing, he overlooks that a presumption 

of vindictiveness for imposing a lengthier sentence following a successful appeal may be 

overcome with “objective information in the record justifying the increased sentence[,]” such as 

“any conduct or event coming to the judge’s attention after the first sentencing that may throw 

new light upon the defendant’s life, health, habits, conduct, and mental and moral propensities.” 

United States v. Russ, 600 F. App’x 438, 444 (6th Cir. 2015) (citations and internal quotations 

marks omitted). Additional felonies that were not previously reported in Neill’s PSR fall 

squarely within that type of information.4 Accordingly, not only is Neill’s likelihood of success 

on appeal quite low, but even if he were to succeed on appeal, he also would have likely faced a 

harsher sentence than he originally received. These are strong indicators that Neill would not 

have appealed had his counsel given him accurate information. 

The only evidence tending to show that Neill would have pursued an appeal, even with 

these odds stacked against him, is his own testimony provided during the evidentiary hearing on 

his § 2255 motion. There, very simply, he said he would have pursued an appeal had his counsel 

given him correct information. We do not find this evidence persuasive. First, the district court 

 

4Additionally, when two different judges preside over the original sentencing and the resentencing, as 

would be the case here, there is no presumption of vindictiveness absent special circumstances. See Goodell v. 

Williams, 643 F.3d 490, 499 (6th Cir. 2011). 
No. 18-5350 Neill v. United States Page 11

appears to have found Neill’s statement to be incredible. See R.E. 76-1, PageID #378 (“Based 

upon the testimony and evidence presented at the evidentiary hearing, Movant fails to show any 

factual or legal basis that Movant’s counsel’s performance was deficient in any way or that 

Movant suffered any prejudice from his counsel’s performance.”). Second, the Supreme Court 

has admonished us that, rather than relying solely on “post hoc assertions from a defendant” 

about what he would have done, we must “look to contemporaneous evidence to substantiate a 

defendant’s expressed preferences[,]” Lee, 137 S. Ct. 1958, 1967 (2017), and as described above, 

the contemporaneous evidence in this case does not substantiate Neill’s testimony at his 

evidentiary hearing. 

Accordingly, we find Neill has not demonstrated a reasonable probability that he would 

have appealed after he was sentenced had he received competent counsel.

III.

For the foregoing reasons, the judgment of the district court is AFFIRMED.