Stephen v. United States, 706 F. App'x 954

Evert Stephen, a federal prisoner serving a 15-year sentence after pleading guilty to being a felon in possession of a firearm, filed a § 2255 motion claiming ineffective assistance for counsel’s failure to file an appeal.
Stephen alleged counsel inadequately advised him about appeal options, causing him to tell counsel not to appeal.
The district court held an evidentiary hearing and credited defense counsel’s testimony that Stephen expressly instructed him not to file an appeal; counsel’s contemporaneous "memo to file" supported that account.
The district court denied relief, concluding Flores-Ortega did not apply because Stephen clearly declined to appeal.
Stephen was granted a certificate of appealability on whether the district court erred by finding Stephen instructed counsel not to appeal and thereby rejecting his Flores-Ortega-based claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for failing to consult about an appeal under Flores-Ortega	Stephen: Flores-Ortega doesn’t bar a claim where counsel’s inadequate advice caused the defendant to tell counsel not to appeal	Government: Stephen expressly told counsel not to appeal, so Flores-Ortega (which governs when wishes are unclear) is inapplicable	Court: Affirmed — district court’s finding that Stephen instructed counsel not to appeal was not clearly erroneous, so Flores-Ortega inquiry was not required
Whether the district court clearly erred in crediting counsel’s testimony over Stephen’s	Stephen: Trial court should not have credited counsel’s account	Government: Credibility determinations are for the factfinder; contemporaneous memo corroborated counsel	Court: Affirmed — substantial deference to factfinder; record supports the finding
Whether counsel’s following an explicit instruction not to appeal can be deficient	Stephen: Counsel’s advice about appeals could be so inadequate that an instruction not to appeal is involuntary	Government: Following an explicit instruction not to appeal is not deficient performance	Court: Affirmed — if a defendant explicitly tells counsel not to appeal, counsel’s compliance is not deficient under Flores-Ortega

Roe v. Flores-Ortega, 528 U.S. 470 (2000) (counsel must consult about appeal when defendant’s wishes are unclear; failure may be deficient and prejudicial)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: deficient performance and prejudice)
Devine v. United States, 520 F.3d 1286 (11th Cir. 2008) (standard of review for § 2255: legal conclusions de novo, factual findings for clear error)
Branch v. Sec’y, Fla. Dep’t of Corr., 638 F.3d 1353 (11th Cir. 2011) (defines clear-error standard)