Larenzo Burnett v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 23-3423
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Larenzo Burnett,
lllllllllllllllllllllPetitioner - Appellant,
v.
United States of America,
lllllllllllllllllllllRespondent - Appellee.
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: September 25, 2024
Filed: January 15, 2025
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Before COLLOTON, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
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COLLOTON, Chief Judge.
Larenzo Burnett pleaded guilty to possession of a firearm by a prohibited
person. The district court1 accepted a sentencing agreement between the parties and
imposed a term of 99 months and 14 days in prison. Burnett later filed a motion to
1The Honorable C.J. Williams, Chief Judge, United States District Court for the
Northern District of Iowa.

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vacate his sentence under 28 U.S.C. § 2255, alleging that he received ineffective
assistance of counsel because his attorney failed to file a notice of appeal. The
district court denied the motion, and we affirm.
I.
In December 2021, Burnett pleaded guilty to possession of a firearm by a
prohibited person. See 18 U.S.C. § 922(g)(1), (g)(3). During the presentence
investigation, a dispute arose about whether Burnett’s prior conviction under Iowa
Code § 708.6(2) constituted a conviction for a “crime of violence” that warranted a
six-level increase in the base offense level under USSG § 2K2.1(a)(4)(A).2 The
probation office recommended that the increase applied; Burnett objected. Before the
district court ruled on the matter, however, the parties reached a sentencing agreement
under which Burnett withdrew his objection and stipulated that the prior conviction
was for a crime of violence. Burnett was represented by an experienced assistant
federal public defender.
The district court determined an advisory guideline sentence of 120 months’
imprisonment, the statutory maximum punishment. See 18 U.S.C. § 924(a)(2) (2020)
(amended 2022); USSG § 5G1.1(a). After applying credit for time served, the court
imposed a sentence of 99 months and 14 days’ imprisonment. The sentencing hearing
occurred on September 8, 2022.
2Iowa Code § 708.6(2) provides as follows:
A person commits a class “D” felony when the person shoots, throws,
launches, or discharges a dangerous weapon at, into, or in a building,
vehicle, airplane, railroad engine, railroad car, or boat, occupied by
another person, or within an assembly of people, and thereby places the
occupants or people in reasonable apprehension of serious injury or
threatens to commit such an act under circumstances raising a
reasonable expectation that the threat will be carried out.
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The next day, September 9, this court decided United States v. Frazier, 48
F.4th 884 (8th Cir. 2022), which held that a violation of Iowa Code § 708.6(2) is not
categorically a crime of violence under the sentencing guidelines. Id. at 887. Burnett
eventually filed a notice of appeal on December 30, 2022, in an effort to rely on
Frazier, but this court dismissed the appeal as untimely.
Burnett then moved to vacate his sentence under 28 U.S.C. § 2255. Burnett
argued that his sentence was imposed in violation of his right to effective assistance
of counsel under the Sixth Amendment because his attorney allegedly ignored
Burnett’s requests to file a timely notice of appeal.
After an evidentiary hearing, the district court found that Burnett had not asked
his attorney to file a notice of appeal within the 14-day period allowed by rule. The
court thus denied the motion to vacate Burnett’s sentence.
II.
To establish ineffective assistance of counsel, a prisoner must show that
counsel’s performance was deficient and that the deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s failure to file an
appeal after a client’s explicit request constitutes deficient performance, and no
further showing of prejudice or likely success on appeal is required. Barger v. United
States, 204 F.3d 1180, 1182 (8th Cir. 2000).
At the evidentiary hearing, Burnett’s defense counsel testified that Burnett
never asked him to file a notice of appeal. Counsel said that he probably spoke with
Burnett in the two weeks following the sentencing hearing, but he could not recall the
content of any conversation. Counsel explained that filing a notice of appeal would
have been an easy task, and he would have done so immediately upon Burnett’s
request. Counsel had no notes or e-mails suggesting that Burnett had asked him to
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file an appeal. He testified that “it would absolutely shock me if he had told me to
appeal and I decided just to disregard his constitutional right to appeal.”
On the day after sentencing, counsel sent a letter to Burnett explaining his right
to appeal and setting forth counsel’s view that Burnett had no good faith basis to
appeal. Counsel’s letter advised Burnett that the sentencing agreement had waived
Burnett’s objection to the base offense level so he had no grounds to appeal. The
letter asked that Burnett make any request to file an appeal in writing, but counsel
testified that he nonetheless would have responded to a request that came by
telephone or any other method. Counsel said that he saw this court’s opinion in
Frazier on approximately September 12, and thought about the terrible timing for
Burnett, but did not discuss the decision with his client until after Burnett filed the
pro se notice of appeal on December 30.
Burnett gave testimony that was diametrically opposed to counsel’s version.
Burnett testified that he told counsel four or five times to file an appeal. Burnett said
that he and counsel followed the Frazier case closely ahead of Burnett’s sentencing
hearing. According to Burnett, as they left the hearing, Burnett told counsel that he
wanted to appeal, and counsel told Burnett to call him. Burnett testified that he called
counsel the next day and asked if there was any news about Frazier because Burnett
wanted to appeal his sentence. Counsel told Burnett that nothing had happened with
Frazier, but counsel allegedly said that he would file an appeal.
Burnett testified that he called counsel again on September 13. During this
call, counsel allegedly said that he had filed a notice of appeal and told Burnett that
Frazier had not been decided. Later that week, Burnett received counsel’s letter and
called him again. Burnett testified that he was confused by the letter because he had
already asked counsel to file an appeal. According to Burnett, he again said that he
wanted to appeal, and counsel told Burnett that there was no reason to appeal because
the ruling in Frazier probably would not benefit Burnett. Burnett claimed that he did
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not learn about the Frazier decision until November or December 2022. Burnett
testified that he called counsel around this time, and counsel said that he thought he
did appeal Burnett’s sentence.
The district court credited defense counsel’s testimony over Burnett’s. The
court relied on Burnett’s demeanor, inconsistencies in Burnett’s testimony, and
Burnett’s lack of corroborating evidence to support his version of events. The court
found it particularly unlikely that Burnett had followed the Frazier case until the day
he was sentenced but then did not find out about the decision until months after the
case was decided. The court found that counsel was an honest and responsible
attorney who gave consistent and reliable testimony. The district court could not
believe that counsel would forget to file an appeal or refuse to acknowledge a mistake
if he made one.
On appeal, Burnett challenges the district court’s credibility determination. We
review the finding for clear error. Barger, 204 F.3d at 1181. A finding is clearly
erroneous when the evidence as a whole produces “a definite and firm conviction that
a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564,
573 (1985). “A district court’s assessment of a witness’s credibility is almost never
clear error given that court’s comparative advantage at evaluating credibility.”
United States v. Killingsworth, 413 F.3d 760, 763 (8th Cir. 2005). Indeed, we have
said that credibility findings “are well-nigh unreviewable, so long as the findings are
not internally inconsistent or based on testimony that is incoherent, implausible, or
contradicted by objective evidence in the case.” United States v. Jones, 254 F.3d 692,
695 (8th Cir. 2001).
The district court did not clearly err in finding that defense counsel was
credible and that Burnett did not ask counsel to file a notice of appeal. The court
observed counsel’s testimony and reasonably assessed that he was telling the truth
and was unlikely to be mistaken. Burnett’s testimony included inconsistencies and
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unlikely claims that cast doubt on the veracity of his version. Burnett asserted that
counsel had agreed to file an appeal but said that counsel later advised him that there
was no reason to appeal when Burnett raised the possibility. Burnett testified that
counsel twice told him that Frazier had not been decided after this court already had
filed the decision. The court reasonably found it doubtful that Burnett had followed
Frazier closely before his sentencing on September 8 but then did not learn of the
decision until November or December 2022.
It is well settled that “[a] bare assertion by the petitioner that [he] made a
request is not by itself sufficient to support a grant of relief, if evidence that the
fact-finder finds to be more credible indicates the contrary proposition.” Barger, 204
F.3d at 1182. The district court here was presented with direct testimony by defense
counsel that Burnett did not ask counsel to file a notice of appeal. The court gave
sound reasons for crediting counsel’s explanation, and our standard of review is
highly deferential. The record does not establish a clear error that justifies reversing
the district court’s finding.
The judgment of the district court is affirmed.
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