United States v. Bejarano, 2:13-cr-20515

Miguel Angel Vergara pled guilty on Nov. 9, 2015 to conspiracy to distribute ≥500 grams of a controlled substance, under a plea agreement that capped his sentence at 120 months and waived appeal rights if the sentence did not exceed that cap.
At the plea colloquy the court and parties discussed the mandatory minimum (60 months), potential Sentencing Guidelines range, and waiver of appeal rights; Vergara acknowledged understanding.
Sentencing occurred June 15, 2016; the Guidelines range was 87–108 months and the court imposed 108 months (top of the range). The court advised Vergara he retained a limited right to appeal and explained the time frame for filing.
Vergara filed a 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel, raising two claims; one was denied earlier and the remaining claim alleged counsel failed to file a timely appeal after being instructed to do so.
An evidentiary hearing was held; Vergara testified his wife called counsel (Elias Escobedo) after sentencing to ask for an appeal but did not call her as a witness. Escobedo testified he asked Vergara immediately after sentencing whether he wanted to appeal and Vergara said no; Escobedo did not recall any call from Vergara’s wife.
The district court found the core dispute one of credibility, credited Escobedo, found Vergara failed to meet his burden to show counsel ignored an instruction to appeal, and denied the § 2255 claim and the motion in full.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel rendered ineffective assistance by failing to file a timely notice of appeal after being instructed to do so	Vergara argued counsel was informed (via his wife) to file an appeal and failed to do so	Escobedo argued he asked Vergara post‑sentence and Vergara said he did not want to appeal; no timely request was made	Court found Escobedo credible, Vergara failed to prove he requested an appeal, and denied the ineffective assistance claim
Whether counsel had a duty to consult about an appeal under Flores‑Ortega	Vergara implied counsel should have consulted further to protect appeal rights	Escobedo maintained no duty to consult further because Vergara stated he did not want to appeal and his plea waived most appeal rights	Court held Flores‑Ortega’s consultation duty not triggered here given guilty plea, waiver, sentence within agreed range, and lack of credible evidence of a request

Roe v. Flores‑Ortega, 528 U.S. 470 (2000) (counsel must consult about appeal when a rational defendant would want to appeal or when defendant indicates interest)
Bayken v. United States, 272 F.2d 186 (6th Cir. 1959) (credibility determinations are for the factfinder)