Date: May 22, 2026

§ 841(b)’s “Notwithstanding § 3583” Clause Defeats Statutory-Maximum Supervised-Release Objections; No Ineffective Assistance Absent a Clear Instruction to Appeal

Case: Carl Kizziah v. United States (11th Cir. May 21, 2026) (unpublished)

Introduction

This Eleventh Circuit decision addresses two recurring postconviction claims under 28 U.S.C. § 2255: (1) ineffective assistance of counsel based on an alleged failure to file a notice of appeal, and (2) ineffective assistance based on counsel’s failure to object that a supervised-release term exceeded the “statutory maximum.”

Petitioner-appellant Carl Billy Kizziah pleaded guilty to three methamphetamine counts under 21 U.S.C. §§ 846 and 841(a)(1), including quantities charged under § 841(b)(1)(A) and § 841(b)(1)(B). He received 150 months’ imprisonment and 180 months (15 years) of supervised release. He did not file a direct appeal, then sought § 2255 relief alleging (among other things) that he told counsel to appeal and that the supervised-release term was unlawfully long.

The court’s disposition is notable for two practical rules: credibility-driven denial of a Roe v. Flores-Ortega “failure-to-appeal” claim where no clear instruction was proven, and rejection of a supervised-release “statutory maximum” argument in § 841 cases because § 841(b) expressly overrides 18 U.S.C. § 3583(b).

Summary of the Opinion

Failure to file notice of appeal: The Eleventh Circuit affirmed the district court’s factual finding—after a limited evidentiary hearing— that Kizziah did not clearly instruct counsel to file an appeal (and that his sister did not clearly convey such a request). Because the district court credited counsel’s testimony over Kizziah’s and his sister’s, there was no deficient performance under Roe v. Flores-Ortega.
Failure to object to supervised-release term: The court held counsel was not ineffective for failing to raise a meritless “statutory maximum” objection. For § 841(b)(1)(A) and § 841(b)(1)(B) offenses, supervised-release terms are governed by § 841(b)’s “notwithstanding section 3583” language and are not capped by the 5-year limit in 18 U.S.C. § 3583(b)(1).
Scope of appellate review: The court declined to reach a broader “failure to consult/advice” theory because the certificate of appealability (COA) covered only failure to file the notice of appeal, not failure to advise about appellate rights.

Analysis

Precedents Cited

Standards of review and deference

Devine v. United States — Supplies the framework for § 2255 appellate review: factual findings for clear error and legal conclusions de novo, and confirms ineffective-assistance claims are mixed questions reviewed de novo.
United States v. Barrington — Defines “clear error” as leaving the appellate court with a definite and firm conviction a mistake occurred.
United States v. Petrie — Emphasizes that where the record supports the district court’s findings, clear error is absent.
Rivers v. United States — Central to the appeal: substantial deference is owed to district-court credibility determinations in § 2255 hearings.
United States v. Ramirez-Chilel — Provides the limiting principle: credibility findings are disturbed only if facially inconsistent or improbable such that no reasonable factfinder could accept them.
Carr v. Schofield — Reinforces that assessing an attorney-witness’s credibility is within the district court’s province because it observes the witness.

Ineffective assistance: the governing framework

Strickland v. Washington — Establishes the two-prong test: deficient performance and prejudice. The opinion anchors both issues to Strickland’s “prevailing professional norms” deficiency standard.
Roe v. Flores-Ortega — The key failure-to-appeal precedent. It draws the critical line between (a) counsel disobeying a specific instruction to appeal (professionally unreasonable) and (b) cases without a clear instruction, which turn on consultation duties and reasonableness.
Garza v. Idaho — Cited for the proposition that prejudice is presumed when deficient performance deprives a defendant of an appeal he otherwise would have taken. (The opinion notes this presumption but never reaches it because it finds no deficiency.)
Thompson, — Supplies Eleventh Circuit elaboration of “adequate consultation” and when counsel has a duty to consult: where a rational defendant would want to appeal or the defendant reasonably demonstrated interest in appealing.

COA limits on issues raised on appeal

McClain v. Hall — Reiterates that appellate review in habeas/§ 2255 appeals is limited to issues specified in the COA.
Murray v. United States — Quoted within McClain v. Hall for the COA-limitation rule.
Hurley v. Moore — Supports refusal to consider arguments raised for the first time on appeal (in conjunction with COA limits).

Meritless-objection principle and supervised-release statutes

Denson v. United States — The opinion’s decisive response to the supervised-release issue: counsel is not deficient for failing to raise a meritless claim.
United States v. Brame — Used to support the interpretive proposition that when a statute supplies no maximum term, it authorizes a term up to life.
United States v. Sanchez — The doctrinal bridge for the supervised-release analysis. It held that § 841(b) “otherwise provides” supervised release terms and thus overrides § 3583(b)’s general caps, preventing § 3583(b) from making § 841(b)’s “at least” language superfluous.
United States v. Duncan — Noted as partially abrogating United States v. Sanchez on other grounds, leaving intact the supervised-release reasoning relied on here.

Legal Reasoning

1) Failure-to-appeal claim: credibility and the “specific instruction” rule

Under Roe v. Flores-Ortega, if a defendant gives a specific instruction to file a notice of appeal and counsel disregards it, counsel performs deficiently. The dispositive question in Kizziah’s case became factual: did Kizziah clearly tell counsel to appeal?

The district court held a limited evidentiary hearing on that question alone and found counsel more credible than Kizziah and his sister, relying on demeanor and consistency. On appeal, the Eleventh Circuit applied Rivers v. United States and United States v. Ramirez-Chilel: credibility determinations are rarely overturned and require an extreme showing of implausibility. Because the record plausibly supported the district court’s finding that no clear instruction was given, the court affirmed the no-deficiency conclusion.

The panel also refused to expand the case into a “failure to consult” theory because the COA did not include that issue. Invoking McClain v. Hall and Hurley v. Moore, the court enforced a strict boundary around the questions presented by the COA.

2) Supervised release: § 841(b) overrides § 3583(b)’s maximums

Kizziah argued his 15-year supervised-release term exceeded the “statutory maximum,” presumably referencing 18 U.S.C. § 3583(b)(1)’s general 5-year cap for Class A/B felonies. The Eleventh Circuit rejected the premise. Section 841(b)(1)(A) and § 841(b)(1)(B) each begin with the phrase “notwithstanding section 3583 of Title 18” and then prescribe supervised-release minimums (five/ten years and four/eight years respectively, depending on prior convictions).

Relying on United States v. Sanchez, the court treated § 841(b)’s “at least” language—now reinforced by the post-Sanchez statutory amendment explicitly stating “notwithstanding section 3583”—as authorizing supervised release above § 3583(b)’s general cap, up to life. In that statutory posture, an objection that the term “exceeded the statutory maximum” would fail on the merits. Under Denson v. United States, counsel cannot be constitutionally deficient for declining to raise a losing argument.

Impact

Practical burden in “told counsel to appeal” disputes: The decision reinforces that these claims often rise or fall on credibility findings. Once the district court credits counsel’s testimony (or finds the defendant’s instruction insufficiently clear), appellate reversal is unlikely given clear-error deference.
COA discipline narrows appellate litigation: By refusing to entertain an un-certified “failure to consult” theory, the opinion underscores the importance of framing and obtaining a COA on each distinct Flores-Ortega pathway (specific instruction vs. consultation duty).
Drug-case supervised release exposure remains broad: For § 841(b) offenses, supervised release is not meaningfully “capped” by § 3583(b); litigants should treat § 841(b)’s scheme as authorizing lengthy terms (potentially up to life), making “statutory maximum” objections generally nonstarters.
Defense practice: The case implicitly rewards documented appeal consultations and clear client communications. Counsel who memorialize appeal discussions reduce the risk of adverse credibility contests in § 2255 proceedings.

Complex Concepts Simplified

28 U.S.C. § 2255 motion: A postconviction procedure allowing a federal prisoner to challenge a sentence or conviction (often for constitutional violations like ineffective assistance). It is not a direct appeal; it is collateral review.
Certificate of appealability (COA): A gatekeeping order specifying which issues a prisoner may appeal from the denial of habeas/§ 2255 relief. If an argument is outside the COA, the appellate court generally will not decide it.
“Clear error” review: A deferential appellate standard for factfinding. Even if the appellate court might have weighed evidence differently, it will affirm unless the finding is plainly mistaken when viewing the whole record.
Strickland’s “deficient performance” and “prejudice”: Deficiency asks whether counsel’s conduct fell below reasonable professional norms. Prejudice asks whether the deficiency harmed the defense. In certain failure-to-appeal situations, prejudice may be presumed—but only after establishing deficiency.
Flores-Ortega appeal duties: If the client specifically instructs counsel to appeal, counsel must file the notice. If there is no clear instruction either way, the case turns on whether counsel adequately consulted the client and, if not, whether counsel had a duty to consult based on the circumstances.
“Notwithstanding” clause: A statutory instruction that one statute applies even if another statute would otherwise limit it. Here, § 841(b) applies “notwithstanding section 3583,” so § 3583(b)’s general supervised-release caps do not control.
Supervised release: A period of court-ordered supervision after imprisonment. Violations can lead to revocation and additional imprisonment.

Conclusion

Carl Kizziah v. United States affirms denial of § 2255 relief on two grounds: (1) where the district court finds as a fact—based on credibility—that the defendant did not clearly instruct counsel to file an appeal, there is no deficient performance under Roe v. Flores-Ortega; and (2) counsel is not ineffective for failing to object that a § 841 supervised-release term exceeds § 3583(b)’s general maximums because § 841(b) expressly overrides § 3583 and authorizes terms above those caps. The opinion also highlights a procedural lesson: § 2255 appellants must secure a COA covering each distinct ineffective-assistance theory they wish to litigate on appeal.