Nathaniel Johnross Weibel v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 20-1832
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Nathaniel Johnross Weibel
Plaintiff - Appellant
v.
United States of America
Defendant - Appellee
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Appeal from United States District Court
for the District of South Dakota - Western
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Submitted: April 16, 2021
Filed: July 6, 2021
[Unpublished]
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Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.
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PER CURIAM.
Nathaniel Weibel pleaded guilty to attempted enticement of a minor using the
internet and received 300 months in prison. See 18 U.S.C. §§ 2422(b), 2427. In a
motion to vacate brought under 28 U.S.C. § 2255, he claimed that his attorney was
ineffective for failing to file a notice of appeal. After finding that the attorney

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testified credibly at an evidentiary hearing and that Weibel did not, the district court1
denied relief.
Key to the district court’s decision was the attorney’s testimony, consistent
with his handwritten notes, that Weibel never instructed him to file an appeal.
Weibel was adamant that he had done so, but the court viewed his testimony as
“convenient, self-serving[,] and generally not candid.” With credibility findings like
these “virtually unreviewable on appeal,” Kidd v. Norman, 651 F.3d 947, 952 n.5
(8th Cir. 2011), we cannot say that anything in this record “le[aves] [us] with the
definite and firm conviction that a mistake has been committed,” Anderson v. City
of Bessemer City, 470 U.S. 564, 573 (1985) (quotation marks omitted); see United
States v. Luke, 686 F.3d 600, 604 (8th Cir. 2012) (subjecting these types of findings
to clear-error review).
We accordingly affirm the judgment of the district court.
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1 The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota, adopting the report and recommendations of the Honorable Daneta
Wollmann, United States Magistrate Judge for the District of South Dakota.

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