FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 20, 2007

THOMAS K. KAHN

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-16970

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D. C. Docket Nos. 05-61504-CV-WPD

04-60122 CR-WPD

RICHARD THOMPSON, 

Petitioner-Appellant, 

versus 

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(March 20, 2007)

Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.

BARKETT, Circuit Judge:

Upon sua sponte reconsideration of this appeal, we vacate our prior opinion

and substitute the following opinion in its place.
 Thompson and Stone were also charged with one count of possession with intent to

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distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)

and 18 U.S.C. § 2. Pursuant to plea agreements, the government dismissed this count.

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Richard Thompson appeals the district court’s denial of his Motion to

Vacate brought pursuant to 28 U.S.C. § 2255. We reverse.

I. Background

Thompson and two co-defendants, Wayne Annakie and Elworth Stone, pled

guilty to one count of conspiracy to possess with intent to distribute 500 grams or

more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846, in

connection with a drug-smuggling scheme involving crew members on Celebrity

Cruise Lines. All three defendants were sentenced on the same day. At the 1

sentencing hearing, the district court granted the co-defendants’ motions for a

minor role reduction and sentenced them to 46 months imprisonment. Counsel for

Thompson, who had not previously requested a reduction, then made an ore tenus

motion for the same minor role reduction on Thompson’s behalf, which the court

denied. The court then sentenced Thompson to 57 months imprisonment. 

Thompson did not appeal.

Thompson, proceeding pro se, subsequently filed a timely Motion to Vacate

pursuant to 28 U.S.C. § 2255, asserting four claims of ineffective assistance of
 Thompson’s ineffective assistance of counsel claims were that (1) counsel only met with 2

him once prior to his entering the plea agreement; (2) counsel stipulated to a higher drug quantity

than could properly have been attributed to Thompson; (3) counsel failed to file a motion for

downward role adjustment prior to sentencing, thereby resulting in Thompson’s higher sentence

vis-à-vis his similarly situated co-defendants; and (4) counsel failed to file a notice of appeal

despite Thompson’s direction to do so immediately after sentencing.

 This opinion is not referring to attorney David Oscar Markus, who was not involved in 3

the case.

 Whether counsel was ineffective is a mixed question of law and fact that we review de 4

novo. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002) (citation omitted). We

review the district court’s conclusions of law de novo, and its findings of fact for clear error. 

Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000).

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counsel. The district court found three of the claims to be conclusively refuted by 2

the record, but held an evidentiary hearing on the fourth: that Thompson’s

attorney, David Scott Markus (“Counsel”), had failed to file an appeal as directed. 

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After the evidentiary hearing, the court concluded that Thompson was not entitled

to relief on the remaining claim, finding Counsel’s testimony that Thompson did

not ask for an appeal “more credible” (or, elsewhere, “slightly more credible”)

than Thompson’s testimony to the contrary. The court denied the motion in its

entirety, but granted Thompson a Certificate of Appealability pursuant to 28

U.S.C. § 2253(c) on that claim. 

II. Discussion4

In order to prevail on his claim that counsel was constitutionally ineffective

for failing to file an appeal, Thompson must show that counsel’s performance was
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deficient and that this deficiency prejudiced him. See Strickland v. Washington,

466 U.S. 668, 687 (1984); see also Roe v. Flores-Ortega, 528 U.S. 470, 476-77

(2000) (holding that Strickland test applies to claim that lawyer was ineffective for

failing file a notice of appeal). 

In Flores-Ortega, the Supreme Court “reaffirmed the well-settled rule that

an attorney who fails to file an appeal on behalf of a client who specifically

requests it acts in a professionally unreasonable manner per se.” Gomez-Diaz v.

United States, 433 F.3d 788, 792 (11th Cir. 2005) (citing Flores-Ortega, 528 U.S.

at 477). Moreover, counsel generally has a duty to consult with the defendant

about an appeal. See Flores-Ortega, 528 U.S. at 481 (expecting that courts “will

find, in the vast majority of cases, that counsel had a duty to consult with the

defendant about an appeal.”). The Supreme Court has defined the term “consult”

specifically to mean “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, to assure that any waiver of the right to appeal is

knowing and voluntary.

In this case, after hearing the conflicting testimony of Thompson and his

prior attorney, the district court credited Counsel’s testimony that Thompson did

not instruct him to file a notice of appeal. There is no basis for us to conclude that
 Thompson testified that he met with his attorney only once between his initial 5

appearance and plea. Counsel testified that he met with Thompson once or twice between the

arraignment and plea, and once after receiving the pre-sentence investigation report.

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the court’s factual finding on this matter was clearly erroneous. See Carr v.

Schofield, 364 F.3d 1246, 1264-65 (11th Cir. 2004).

However, where a defendant has not specifically instructed his attorney to

file an appeal, we must still determine “whether counsel in fact consulted with the

defendant about an appeal.” Flores-Ortega, 528 U.S. at 478. As noted above,

adequate consultation requires informing a client about his right to appeal,

advising the client about the advantages and disadvantages of taking an appeal,

and making a reasonable effort to determine whether the client wishes to pursue

an appeal, regardless of the merits of such an appeal. Frazer v. South Carolina,

430 F.3d 696, 711 (4th Cir. 2005). 

In this case, although Thompson and his attorney disagreed about the

number of times they met throughout the course of the representation, it was

undisputed that Counsel did not discuss Thompson’s appellate rights prior to

sentencing. Indeed, he only advised Thompson of his appellate rights at 5

sentencing after the judge notified Thompson of his right to appeal. Counsel

testified that right after sentence was imposed, Thompson was “unhappy” with his

sentence, as compared to that of his co-defendants, and “asked [him] about why
 Thompson testified that he and his attorney remained in the courtroom for about three 6

minutes after sentence was imposed. Counsel testified that this exchange lasted “no more than

five minutes, probably less.”

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the Judge told him he had a right to appeal if he had pled guilty.” Counsel

reiterated that Thompson had a right to appeal, only adding that he did not think

an appeal would be successful or worthwhile. Thompson then said “fine.” This

exchange, which lasted no more than five minutes, consisted simply of notifying 6

Thompson of the right to appeal (as the judge had already done) and Counsel’s

opinion that such an appeal would not be successful. Counsel did not explain the

appellate process or the advantages and disadvantages of taking an appeal. 

Counsel further admitted that he did not tell Thompson that an appeal would not

expose Thompson to a higher sentence, nor that he was obligated to file an appeal

if that is what Thompson wanted, regardless of his recommendation. When asked

whether Thompson appeared to understand what an appeal was, Counsel

responded “I don’t know . . . I mean I can’t get into his head.” Counsel did not

communicate further with Thompson during the ten-day period within which he

could have appealed. 

Although the district court found aspects of this testimony “troubling,” its

only comment about the adequacy of Counsel’s performance was that

“[c]onsulting with [Thompson] for less than five minutes about his right to appeal
 While not dispositive, the short duration of the exchange is a relevant factor which, in 7

this case, weighs against finding adequate consultation as a matter of law. See Flores-Ortega,

528 U.S. at 489 (Souter, J., concurring in part and dissenting in part) (“If the crime is minor, the

issues simple, and the defendant sophisticated, a 5-minute conversation with his lawyer may well

suffice; if the charge is serious, the potential claims subtle, and a defendant uneducated, hours of

counseling may be in order.”).

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does not equate to a failure to consult.” The question of what constitutes adequate

consultation, however, is not one of duration, but of content. 

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The content of the exchange in this case did not constitute adequate

consultation. Simply asserting the view that an appeal would not be successful

does not constitute “consultation” in any meaningful sense. No information was

provided to Thompson from which he could have intelligently and knowingly

either asserted or waived his right to an appeal. This record is clear that no

reasonable effort was made to discover Thompson’s informed wishes regarding an

appeal. Under these circumstances, any waiver by Thompson of his right to

appeal was not knowing and voluntary. 

Having determined that Counsel did not adequately consult with Thompson,

we turn to whether, if counsel had an affirmative duty to consult, his failure to do

so prejudiced the defendant. Flores-Ortega, 528 U.S. at 480, 484. Counsel has a

constitutional duty to consult with a defendant about an appeal when: (1) any

rational defendant would want to appeal; or (2) the defendant reasonably

demonstrated an interest in appealing. Gomez-Diaz, 433 F.3d at 792 (citing
 That the sentencing judge notified Thompson that he had a right to appeal does not 8

absolve counsel from the duty to consult with his client about the substance of the right to appeal.

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Flores-Ortega, 528 U.S. at 480). In order to establish that he was prejudiced by

counsel’s failure to file an appeal, Thompson must show 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.” Flores-Ortega, 528 U.S. at 484. Because

a direct appeal of a federal conviction is a matter of right, see Rodriquez v. United

States, 395 U.S. 327, 329-330 (1969), we determine whether a defendant has

shown that there is a reasonable probability that he would have appealed without

regard to the putative merits of such an appeal. Flores-Ortega, 528 U.S. at 485-86;

Gomez-Diaz, 433 F.3d at 793.

Here, according to Counsel’s own testimony, Thompson was “unhappy”

with his sentence as compared to that of his co-defendants, and asked about the

right to appeal at sentencing. Under these circumstances, Counsel had a clear duty

to consult with Thompson. Thompson demonstrated an interest in an appeal by 8

asking his attorney about that right. In addition, it cannot be said that no rational

defendant would have wanted to appeal the differential sentence imposed under

the facts of this case.

Finally, we readily find that Thompson met his burden of showing the
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requisite prejudice. Thompson was dissatisfied with what he perceived to be a

disparate sentence compared to his similarly-situated co-defendants. Had Counsel

adequately consulted with him about an appeal, there is a reasonable probability

that Thompson would have exercised his right to appeal. Indeed, there is no basis

on this record to conclude otherwise.

REVERSED.