WEIBEL v. UNITED STATES (2021)

[Unpublished]

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 testified credibly at an evidentiary hearing and that Weibel did not, the district court ¹ 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, 105 S.Ct. 1504, 84 L.Ed.2d 518 (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.

FOOTNOTES

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.

PER CURIAM.