United States of America v. Michael Jones

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-3372
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Michael Jones
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: September 13, 2019
Filed: September 18, 2019
[Unpublished]
____________
Before GRUENDER, STRAS, and KOBES, Circuit Judges.
____________
PER CURIAM.
Michael Jones appeals the district court’s order denying his 28 U.S.C. § 22551
motion after an evidentiary hearing. The district court granted Jones a certificate of
The Honorable Brian S. Miller, Chief Judge, United States District Court for1
the Eastern District of Arkansas.

-- 1 of 2 --

appealability on his claim that his plea counsel was ineffective for failing to file a
direct appeal. Following careful review, see Covey v. United States, 377 F.3d 903,
906 (8th Cir. 2004) (reviewing de novo denial of ineffective-assistance claim but
reviewing for clear error any findings of underlying facts), we affirm the denial of
relief on this issue. The evidence established that Jones became upset when his
attorney, upon visiting Jones after sentencing to discuss whether he wished to appeal,
advised Jones there were no viable issues for appeal. Jones then left his attorney
without instructing him to file an appeal. See Roe v. Flores-Ortega, 528 U.S. 470,
478 (2000) (holding that counsel who consulted with defendant performs in
professionally unreasonable manner only by failing to follow defendant’s express
instructions with respect to an appeal); Barger v. United States, 204 F.3d 1180,
1181-82 (8th Cir. 2000) (noting that, for § 2255 movant to succeed on claim that
counsel was ineffective for failing to file appeal, desire to appeal must be manifest).
Jones also seeks to expand the certificate of appealability to include a claim
that his counsel was ineffective at sentencing for failing to argue that Jones’s prior
Missouri and Arkansas drug convictions did not qualify as career-offender predicates.
In the absence of authority that would cause a reasonable jurist to conclude that the
district court’s ruling on this claim was debatable or wrong, we decline to grant the
request. See Winfield v. Roper, 460 F.3d 1026, 1040 (8th Cir. 2006).
The district court’s judgment is affirmed.
______________________________
-2-

-- 2 of 2 --