United States of America v. Nakia Jeffries

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3407
UNITED STATES OF AMERICA
v.
NAKIA JEFFRIES,
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE M IDDLE
DISTRICT OF PENNSYLVANIA
(Dist. Court No. 00-cr-00004)
District Court Judge: Hon. Yvette Kane
Submitted Under Third Circuit LAR 34.1(a)
July 23, 2003
Before: ALITO, FUENTES, and BECKER, Circuit Judges.
(Opinion Filed: August 25, 2003 )
OPINION OF THE COURT

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ALITO, Circuit Judge:
Nakia Jeffries (“Jeffries”) appeals an order of the United States District Court for
the Middle District of Pennsylvania (“District Court”) denying Jeffries’s motions under
28 U.S.C. § 2255. Jeffries claims that his counsel at his plea bargain and sentencing,
Sanford Krevsky (“Krevsky”), was constitutionally ineffective because Krevsky failed to
file a notice of appeal as Jeffries requested. For the reasons stated below, we affirm the
order of the District Court.
Because we write only for the parties, we need not describe the factual background
of this case. Jeffries argues that the District Court found that Jeffries asked Krevsky to
file an appeal of Jeffries’s conviction and sentence, and that the District Court should
have therefore concluded that Krevsky’s failure to do so was per se ineffective under
Strickland v. Washington, 466 U.S. 668 (1984). Our review of the question whether
Jeffries received ineffective assistance is plenary. United States v. Kauffman, 109 F.3d
186, 187 (3d Cir. 1997); Dooley v. Petsock, 816 F.2d 885, 889 (3d Cir. 1987).
In support of his argument, Jeffries refers us to the Supreme Court’s decision in
Roe v. Flores-Ortega, 528 U.S. 470 (2000). In Flores-Ortega, the defendant pled guilty to
one count of second-degree murder and was sentenced by a state court. The defendant’s
counsel did not file a notice of appeal within the time period prescribed by state law. The
defendant then filed a federal habeas petition, claiming that counsel was ineffective
because she failed, contrary to the defendant’s wishes, to file a notice of appeal. An

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evidentiary hearing was held before a Magistrate Judge. The Magistrate Judge found that
the defendant failed to prove that he instructed counsel to file an appeal, but that counsel
did not consult with the defendant regarding whether the defendant wanted counsel to
appeal. The question before the Court was whether counsel’s failure to consult with the
defendant regarding the possibility of an appeal was per se ineffective. In dictum on
which Jeffries relies, however, the Court noted that “[w]e have long held that a lawyer
who disregards specific instructions from the defendant to file a notice of appeal acts in a
manner that is professionally unreasonable.” Flores-Ortega, 528 U.S. at 477 (citing
Rodriguez v. United States, 395 U.S. 327 (1969)). We adopted this dictum in our holding
in Solis v. United States, 252 F.3d 289 (3d Cir. 2001). See Solis, 252 F.3d at 293-94
(“Prejudice is presumed from counsel’s failure to file a notice of appeal when so
requested by a client.”).
Jeffries contends that the District Court made a specific factual finding to the
effect that Jeffries requested that Krevsky file a notice of appeal and that therefore, under
Flores-Ortega, Krevsky’s failure to file such a notice was per se ineffective. To support
this contention, Jeffries cites the District Court’s statement that “when Jeffries talked
about appealing the sentence, Krevsky interpreted this direction as a request to file a
motion to reconsider the sentence.” App. at 50. According to Jeffries, this passage
clearly indicates that the District Court found that Jeffries told Krevsky to file a notice of
appeal.

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Jeffries’s reading of the District Court’s opinion, however, is inconsistent with
other portions of that opinion’s language. In rejecting Jeffries’s ineffective assistance
claim, the District Court stated that “[w]ere Jeffries able to establish that he requested that
his attorney file an appeal and counsel failed to do so, the criteria for ineffective
assistance would be satisfied.” Id. at 51. The Court added: “However, where, as here,
counsel had no reason to think that Jeffries would want to appeal, and further, Jeffries
demonstrated to counsel a desire to reduce his sentence, but not any desire to appeal to the
Court of Appeals, counsel’s performance was not deficient.” Id. (emphasis added).
It would not have made sense for the District Court to find both (1) that Jeffries
told Krevsky to appeal and (2) that Krevsky “had no reason to think that Jeffries would
want to appeal.” The District Court’s statement that Jeffries “talked about appealing the
sentence” is thus best read to mean that Jeffries and Krevsky discussed (at least briefly)
the possibility of appealing Jeffries’s sentence, but that Jeffries never gave Krevsky a
specific instruction. This reading of the District Court’s opinion is consistent with
Krevsky’s testimony at the evidentiary hearing, in which he stated that he “did not think
[Jeffries] had any appealable issues, and” that Krevsky “shared [his view] with
[Jeffries’s] family.” Id. at 133. It thus appears that the District Court credited Krevsky’s
testimony that he and Jeffries discussed the prospects of success in an appeal but that
Jeffries never told him to file one. Moreover, the District Court’s conclusion to that
effect is amply supported by the record.

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For these reasons, we do not believe that the District Court made a finding of fact
to the effect that Jeffries instructed Krevsky to file a notice of appeal. As such, Krevsky’s
assistance was not per se ineffective under Flores-Ortega. We have considered all of
Jeffries’s arguments, but we conclude that the District Court did not err in holding that
Krevsky did not afford Jeffries ineffective assistance. Accordingly, we affirm the order
of the District Court denying Jeffries’s 28 U.S.C. § 2255 motions.

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TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Samuel A. Altio
Circuit Judge

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