No Prejudice for § 2255 Based on Implausible Testimony that Would Have Appealed But For Counsel’s Deficient Performance

United States v. Bejarano, No. 12-10952 (5th Cir. Mar. 11, 2014) (King, Southwick, Graves) (per curiam)

The panel denied the habeas corpus petitions for ineffective assistance of counsel because, even if counsel did not sufficiently consult with the appellants about filing an appeal and had a duty to do so, the appellants did not show any prejudice.  “The record does not support a finding that there is a ‘reasonable probability that Appellants would have timely appealed but for their counsels’ deficient failure to consult[.]”

The appellants (husband and wife) pled guilty to conspiring to commit money laundering and waived their rights to contest their convictions and sentences except for claims of ineffective assistance of counsel.  They were both sentenced to 42 months’ imprisonment (below the advisory guideline range), but the district court allowed the wife to delay her prison term and return to China to care for her minor children until the husband, Bejarano, completed his prison term. 

To show prejudice, the appellants relied on their expression of interest to counsel in appealing and Bejarano’s testimony that he would have appealed.  Evidence of interest in appealing alone, however, is insufficient to establish that a defendant would have instructed his attorney to file an appeal but for the counsel’s deficient performance.  Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000).  The district court found Bejarano’s testimony that he would have appealed to be “self-serving” and “implausible in light of the other evidence,” and the appellants did not argue that the district court’s findings were clearly erroneous.  Given that, and that the appellants waited nearly a year after sentencing to file their petitions, the panel found that they failed to show a reasonable probability they would have appealed but for counsels’ deficiency.