govinfo:USCOURTS-ncmd-1_21-cr-00072-2

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 
 
TOCEE MARTINZE MITCHELL, 
 
 
 Petitioner, 
 
v. 
 
 
UNITED STATES OF AMERICA, 
 
 
 Respondent. 
 
 
 
 
 1:23-CV-61-DAB-LPA 
 1:21-CR-72-DAB-1 
 
 
 
 ORDER 
On May 28, 2026, the Court conducted an evidentiary hearing on whether 
Petitioner Tocee Mitchell instructed counsel, Ralph Frasier, to file an appeal and 
whether counsel failed to do so. 
The Sixth Amendment guarantees criminal defendants reasonably effective 
assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). To establish 
ineffective assistance, a petitioner must show both deficient performance and 
resulting prejudice. Id. 
Counsel must file a notice of appeal when instructed to do so. Roe v. Flores-
Ortega, 528 U.S. 470, 477 (2000). Even absent an express instruction, counsel has 
a duty to consult with the defendant regarding an appeal when “there is reason to 
think either (1) that a rational defendant would want to appeal…; or (2) that this 
particular defendant reasonably demonstrated to counsel that he was interested in 
appealing.” Id. at 480. Prejudice is established by showing a reasonable probability 
that, but for counsel ’s failure to file or consult, the defendant would have timely 
appealed. Gordon v. Braxton, 780 F.3d 196, 200 (4th Cir. 2015) . A petitioner need 
not show that the appeal would have succeeded. Flores-Ortega, 528 U.S. at 485–86. 
However, “a defendant who explicitly tells his attorney not to file an appeal plainly 

cannot later complain that, by following his instructions, his counsel performed 
deficiently.” Id. at 470. 
After hearing testimony from Petitioner and Attorney Frasier, and considering 
the arguments of counsel, the Court finds tha t Petitioner and Attorney Frasier 
discussed Petitioner’s appellate rights following sentencing. Petitioner decided not 
to pursue an appeal because Petitioner received a sentence sixteen months below the 
guidelines range, and Petitioner understood that a successful appeal could expose 
him to a higher sentence. Consistent with that understanding, and in the absence of 
any timely instruction from Petitioner or his family to do otherwise, Attorney Frasier 
did not file a notice of appeal. 
The Court further finds that, although members of Petitioner’s family later 
discussed the possibility of an appeal with Attorney Frasier, those discussions 
occurred outside both the 14 -day deadline for filing a notice of appeal and the 
additional 30 -day excusable -neglect period. Approximately two months after 
judgment was entered, Petitioner filed an untimely pro se notice of appeal, which 
the Fourth Circuit rejected. Petitioner then filed the present motion under 28 U.S.C. 
§ 2255 , supported by a declaratio n containing multiple statements shown at the 
evidentiary hearing to be factually false. 
The Court finds Attorney Frasier’s testimony entirely credible. Frasier, an 
experienced criminal defense attorney, credibly testified that he discussed appellate 
rights with Petitioner and that Petitioner chose not to appeal. The Court further finds 
that Frasier would have filed a notice of appeal had Petitioner requested one. 
For these reasons , and the reasons the Court gave at the hearing, the Court 
finds that Petitioner did not instruct counsel to file a notice of appeal and has failed 
to establish ineffective assistance of counsel by a preponderance of the evidence. 
Accordingly, Petitioner’s Motion to V acate under 28 U.S.C. § 2255 (D.E. 50) 
is DENIED and the Case 23-CV-61 is DISMISSED WITH PREJUDICE. 
This the 29th day of May, 2026. 
 
 /s/ David A. Bragdon 
 United States District Judge 

Passage view · GavelSight