Davis v. United States, 1:19-cv-22263

In July 2017 Movant Keith Davis robbed two T‑Mobile stores at gunpoint; police recovered stolen phones, clothing, a loaded firearm, and matching ammunition from his vehicle.
He was indicted on Hobbs Act robbery counts and multiple firearm counts, pleaded guilty to two Hobbs Act counts and one §924(c) count, and executed a plea agreement that included an appellate‑waiver and a joint 15‑year sentencing recommendation.
The court sentenced Davis to 147 months’ imprisonment (33 months below the joint recommendation). He did not file a direct appeal.
Davis filed a §2255 motion alleging (inter alia) ineffective assistance of counsel for failing to advise him of his right to appeal; the district judge adopted most of a magistrate judge’s R&R but ordered an evidentiary hearing on the appeal‑advice claim.
At the hearing Davis testified he told counsel he was unhappy and wanted to know what could be done; counsel testified he had reviewed the plea (including the appellate waiver), did not recall post‑sentencing messages, and would have advised against an appeal because of the waiver.
The magistrate found counsel had a duty to consult (Davis reasonably demonstrated interest in appealing) but Davis failed to show prejudice (he understood and waived appeal rights and likely would have followed counsel’s advice); recommended denial of the §2255 motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel had a duty to consult about an appeal under Flores‑Ortega	Davis says he expressed dissatisfaction and asked what could be done, so counsel should have consulted	Counsel admits Davis was unhappy but denies recall of a request to appeal; would have advised against appeal due to appellate‑waiver	Duty to consult existed: Davis reasonably demonstrated interest in appealing (counsel should have consulted)
Whether Davis suffered prejudice from counsel’s failure to consult (i.e., would have appealed)	Davis says he would have appealed had he known his appellate options	Counsel and record show Davis understood and accepted the plea waiver and typically followed counsel’s advice; counsel would have discouraged appeal	No prejudice: Davis likely would not have appealed; §2255 relief denied
Whether counsel disregarded an express instruction to file a notice of appeal	Davis asserts loss of appeal opportunity because counsel did not file	Court found no specific instruction was given to counsel to file an appeal	Not established: there was no specific instruction to file an appeal

Strickland v. Washington, 466 U.S. 668 (1984) (two‑part ineffective assistance standard: deficient performance and prejudice)
Roe v. Flores‑Ortega, 528 U.S. 470 (2000) (counsel’s duty to consult about appeal and prejudice analysis for failure to file notice of appeal)
Thompson v. United States, 504 F.3d 1203 (11th Cir. 2007) (applying Flores‑Ortega in the Eleventh Circuit)
Palacios v. United States, [citation="453 F. App'x 887"] (11th Cir. 2011) (post‑sentencing inquiry like “what can we do now?” can demonstrate interest in appeal)
Medina v. United States, [citation="167 F. App'x 128"] (11th Cir. 2006) (finding no prejudice where defendant understood waiver and delayed in raising claim)
Harrigan v. Metro‑Dade Police Dep’t Station #4, 977 F.3d 1185 (11th Cir. 2020) (procedural rules on objections to magistrate report)