Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 21-1094

GILBERTO ECHEVARRIA,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Lynch, Thompson, and Kayatta, Circuit Judges.

Scott Katz and Scott Katz Law on brief for appellant. Nathaniel R. Mendell, Acting United States Attorney, and Donald C. Lockhart, Assistant United States Attorney, on brief for appellee.

October 28, 2021 THOMPSON, Circuit Judge. Sometime after pleading guilty

to various drug and gun charges, Gilberto Echevarria moved a

district judge under the federal habeas statute to vacate his

conviction and sentence. Of the many claims made in his motion,

the one relevant here is his complaint that plea counsel (as he,

and thus we, call counsel) acted ineffectively by (supposedly)

ignoring his direct order to file a notice of appeal after entry

of judgment. The judge, however, denied his motion following an

evidentiary hearing — though she did grant him a certificate of

appealability ("COA") permitting our review. And we now affirm,

noting up front that because we pen this not-for-publication

opinion principally for the parties — who know the facts, the

procedural history, and the arguments presented — our discussion

will be short (we relate only what is needed to justify our

affirmance).

Crediting plea counsel's account over Echevarria's

(after seeing and hearing them testify), the judge found (emphasis

ours) "that Echevarria did not ask [plea counsel] to file a notice

of appeal." Dissatisfied, Echevarria wants us to stamp the judge's

finding clearly erroneous. But that is a big ask, seeing how he

must convince us that this "finding stinks like 'a 5 week old,

unrefrigerated, dead fish.'" See United States v. Rivera-

Carrasquillo,

(1st Cir. 2019) (quoting Toye v.

O'Donnell (In re O'Donnell),

(1st Cir. 2013)),

- 2 - cert. denied,

(2020); see also id. (explaining, in

"less colorful[]" terms, how a finding is not clearly erroneous

unless it generates "'a strong, unyielding belief' that the judge

stumbled" (emphasis in original and quoting In re O'Donnell,

)). Actually, it only gets harder for him because when

"a judge's finding is based on witness credibility, that finding,

'if not internally inconsistent, can virtually never be clear

error.'" See

(emphasis in original and quoting Anderson v.

City of Bessemer,

(1985)).

And measured against this standard, Echevarria's

argument stands no chance. He, for example, does not counter the

government's point that he makes "no effort" to show any internal

inconsistencies (he filed no reply brief). What he does instead

(as the government notes, without contradiction) is urge us to re-

sift the evidence by focusing on factors favoring his position,

like (for instance) how plea counsel had trouble recalling the

details of certain peripheral subjects (e.g., the arraignment date

in this case), how plea counsel admitted not filing a notice of

appeal in an unrelated criminal matter, and how it is more likely

that he (Echevarria) rather than plea counsel would recall events

in his own case. But such a re-weighing/second-guessing is

verboten under the highly deferential clear-error standard. See

United States v. Wetmore,

(1st Cir. 2016). See

generally Rivera-Carrasquillo,

(stressing that even

- 3 - a showing "that [a] finding is 'probably wrong'" is not enough on

clear-error review (emphasis in original and quoting In re

O'Donnell,

)).

Perhaps sensing this vulnerability, Echevarria debuts a

two-part argument here. We say "debuts" because (pertinently for

our purposes) Echevarria's COA request focused on the judge's

finding that he never told plea counsel to file a notice of appeal.

Anyway, his new theory is that even if the judge did not clearly

err in so finding, (1) he "reasonably demonstrated" that he wished

to appeal, thus triggering a "duty" on plea counsel to talk to him

about the pros and cons of an appeal — (2) a duty plea counsel

"failed to fulfill." But because (as the government writes, again

without contradiction) the judge's COA could not have authorized

him to press an issue on appeal that he concededly did not raise

below, this argument goes nowhere (he offers us no good reason why

we should hold differently). See, e.g., Shea v. United States,

(1st Cir. 2020); Peralta v. United States,

(1st Cir. 2010).

Given our ruling, we need not referee any other disputes

between the parties. And we end with this word (a variation of

one used above):

Affirmed.

- 4 -