UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-7553

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DINARLDO MATTHEWS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Robert G. Doumar, Senior 

District Judge. (2:00-cr-00213-RGD)

Argued: May 11, 2010 Decided: June 21, 2010

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

ARGUED: Arenda Lauretta Allen, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Norfolk, Virginia, for Appellant. Richard Daniel 

Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, 

for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public 

Defender, Alexandria, Virginia, for Appellant. Neil H. 

MacBride, United States Attorney, Alexandria, Virginia, Kevin M. 

Comstock, Assistant United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Dinarldo Matthews appeals from an order of the district 

court denying his 28 U.S.C. § 2255 (2006) motion. Matthews 

contends that his trial counsel provided constitutionally 

ineffective representation in failing either to file a notice of 

appeal or consult with Matthews regarding an appeal after 

Matthews had pled guilty to drug charges. We affirm.

I.

Matthews pled guilty to one count of conspiracy to 

distribute and possess with intent to distribute heroin and 

cocaine. Matthews’s plea agreement included an explicit waiver 

of his right to appeal. In exchange, the Government reduced the 

drug quantity for which Matthews was responsible and requested a 

smaller enhancement for Matthews’s leadership role in the 

conspiracy. In accord with this agreement, Matthews’s advisory 

sentencing range under the United States Sentencing Guidelines

(“Guidelines”) decreased from an initial range of 324 to 405 

months’ imprisonment to a new range of 210 to 262 months. 

Matthews ultimately received a prison sentence of 225 months. 

The district court then informed Matthews that notwithstanding 

his waiver of his right to appeal, he could still file a notice 

of appeal. Matthews told the court that he did not wish to 

appeal.
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After his appeal period had expired, Matthews requested an 

extension of time in which to file an appeal. The district 

court denied this request. Matthews then filed this § 2255 

motion, alleging that after the district judge left the 

courtroom at sentencing, Matthews instructed his trial counsel 

to file a notice of appeal. The district court denied 

Matthews’s motion without holding an evidentiary hearing. This 

court granted a certificate of appealability, reversed, and 

remanded with instructions to hold a hearing. See United States 

v. Matthews, 239 F. App’x 806, 807 (4th Cir. 2007).

At the hearing, Matthews and his three sisters testified 

that, after being sentenced, Matthews told his trial counsel 

that he wished to appeal. Matthews further testified that prior 

to sentencing, he had expected to receive a sentence of ten 

years based on his plea agreement, and not a sentence of 225 

months. Matthews and his sisters testified that they tried and 

failed to reach trial counsel to instruct him to file a notice 

of appeal.

Matthews’s trial counsel testified to the contrary. He 

explained that he had seventeen years of experience in 

representing criminal defendants, and that he had, in the past, 

filed notices of appeal for clients who had waived their right 

to appeal. Counsel further testified that his practice was to 

keep notes and records of all court appearances, meetings, and 
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telephone calls with clients. These notes contained no mention 

of Matthews’s request to appeal, and trial counsel, relying on 

the notes, testified that Matthews had not requested him to file 

a notice of appeal. Trial counsel also testified that had 

Matthews instructed him to appeal, he would have done so. 

Finally, counsel testified, again contrary to Matthews’s 

assertion that counsel had been unreachable, that he had met 

with Matthews in prison several days after sentencing and that 

Matthews did not mention an appeal during that meeting.

The district court found that Matthews never requested that 

his trial counsel file a notice of appeal on his behalf. The 

court credited counsel’s testimony given his years of experience 

and his copious notes detailing his interactions with Matthews. 

The court discredited the testimony of Matthews and his sisters 

because the sisters had difficulty remembering other details 

about the sentencing proceeding, and because it would have been 

illogical for Matthews to seek to appeal based both on his 

nearly contemporaneous statement to the court that he did not 

wish to appeal and on the terms of his plea agreement.

Matthews again appealed the district court’s denial of his 

§ 2255 motion. Noting that the conflict in the evidence 

rendered the district court’s conclusion “debatable,” we granted 

a certificate of appealability on the issue of “[w]hether the 
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district court committed clear error in finding that Matthews 

did not ask his attorney to file an appeal.”

II.

In Strickland v. Washington, 466 U.S. 668, 687 (1984), the 

Supreme Court established that defendants have a Sixth Amendment 

right to “reasonably effective” legal assistance. For a 

defendant to prove a violation of this right, he must show that 

his attorney’s representation “fell below an objective standard 

of reasonableness,” id. at 688, and that this failure prejudiced 

him, id. at 694.

On appeal, Matthews argues that his trial counsel was 

ineffective. He contends both that the district court clearly 

erred in finding that he did not request counsel to file a 

notice of appeal, and also that even if he did not instruct 

counsel to appeal, counsel was ineffective for failing to 

consult Matthews about whether Matthews wanted to appeal. We 

consider these contentions in turn.

A.

When counsel fails to file a notice of appeal after 

receiving specific instructions from a defendant to do so, this 

constitutes a violation of the defendant’s Sixth Amendment 

rights, regardless of whether the defendant is likely to prevail 

on appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). 
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Thus, the sole question necessary to resolve Matthews’s first 

contention is whether he did, in fact, instruct counsel to file 

a notice of appeal.

We reverse a district court’s factual finding that a 

defendant did not instruct trial counsel to file a notice of 

appeal only if, after giving “due regard to the trial court’s 

opportunity to judge the witnesses’ credibility,” we determine 

that the district court’s finding is “clearly erroneous.” Fed. 

R. Civ. P. 52(a)(6). “[A] finding is ‘clearly erroneous’ when 

although there is evidence to support it, the reviewing court on 

the entire evidence is left with the definite and firm 

conviction that a mistake has been committed.” Anderson v. City 

of Bessemer City, 470 U.S. 564, 573 (1985) (internal quotation 

marks omitted).

A district judge’s credibility determinations deserve “even 

greater deference” than other factual findings. Id. at 575. 

When, as here, “a trial judge’s finding is based on his decision 

to credit the testimony of one of two or more witnesses, each of 

whom has told a coherent and facially plausible story that is 

not contradicted by extrinsic evidence, that finding, if not 

internally inconsistent, can virtually never be clear error.” 

Id.

Under this deferential standard, we cannot disturb the 

district court’s finding that Matthews failed to request an 
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appeal. The district court credited an experienced and 

accomplished defense attorney who kept detailed written notes, 

rather than Matthews and his sisters, who offered self-serving, 

illogical, and incomplete testimony.

Moreover, no extrinsic evidence contradicted counsel’s 

account. Indeed, all of the evidence supported it: Matthews had 

pled guilty, received a much lower sentence than he would have

absent his plea agreement, and proclaimed in open court that he 

did not wish to appeal. Thus, the district court’s finding that 

Matthews did not, minutes later, instruct his trial counsel to 

file a notice of appeal is not clearly erroneous.

B.

Matthews also argues that his counsel unreasonably failed 

to consult with him regarding an appeal.*

 * The Government contends that this issue falls outside the 

scope of the certificate of appealability. However, as the 

Supreme Court noted in Flores-Ortega, whether counsel consulted 

with the defendant about appeal is an “antecedent” question that 

must be considered before a court can resolve whether counsel’s 

failure to file a notice of appeal was reasonable under the 

circumstances. 528 U.S. at 478. Prior to oral argument, we 

ordered supplemental briefing on this issue. Because the 

parties have thus had an opportunity to brief and argue 

counsel’s alleged duty to consult, the Government suffers no 

prejudice by having to address this antecedent issue.

 When the defendant 

fails to give his attorney a clear instruction to appeal, the 

Supreme Court had held that a reviewing court must decide 

whether counsel nevertheless had a duty to consult with his 
8

client regarding an appeal. The Court has emphasized that “in 

the vast majority of cases,” counsel has such a duty. FloresOrtega, 528 U.S. at 481.

This duty to consult arises “when there is reason to think 

either (1) that a rational defendant would want to appeal (for 

example, because there are nonfrivolous grounds for appeal), or 

(2) that this particular defendant reasonably demonstrated to 

counsel that he was interested in appealing.” Id. at 480. As 

the district court found, Matthews did not “reasonably 

demonstrate[]” an interest in appealing. Thus, his counsel had 

a duty to consult him only if a rational defendant in Matthews’s 

position would wish to appeal. The record provides no support 

for such a conclusion.

Here, Matthews pled guilty to the offense, and in so doing 

expressly and voluntarily waived his right to appeal. As a 

result of that agreement, Matthews received a sentence nearly 

100 months shorter than the bottom of his original Guidelines 

range. At oral argument before us, Matthews’s appellate counsel 

conceded that Matthews would gain nothing from an appeal. In 

fact, because any appeal would breach his obligations under the 

favorable plea agreement, Matthews would likely have received a 

longer prison sentence if he chose to file a notice of appeal. 

Surely, no rational defendant would have chosen to appeal when 
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there was literally no upside -- and potentially a significant 

downside -- to doing so.

Accordingly, we hold that this constitutes one of the rare

cases in which an attorney did not have a duty to consult with 

his client regarding an appeal.

III.

The judgment of the district court is

AFFIRMED.