* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 26 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. GARY RAY CROWELL,

Defendant-Appellant. No. 00-2134 (D.C. No. CIV-97-587-JC) (D. N.M.)

ORDER AND JUDGMENT *

Before HENRY, BRISCOE, and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Defendant Gary Ray Crowell seeks a certificate of appealability (COA) in order to appeal from the district court’s order denying relief in his motion filed under 28 U.S.C. § 2255. We deny Crowell’s applicat ion and dismiss the appeal.

I. The facts and procedural background of this case ar e set forth in the magistrate judge’s detailed and thorough thirty-fou r-page report and recommendation. Thus, we only briefly repeat those facts necessary to resolve this appeal. Crowell pled guilty in April 1987 to an indictment charging him with one count of kidnaping in violation of 18 U.S.C. § 1201(a)(1) based upon his abduction and sexual abuse of a fourteen-year-old v ictim in Arizona. Crowell was represented by appointed counsel, Mr. Phillip G addy. His guilty plea, made at the start of his trial, was not based on any ple a negotiations with the government, but rather on his belief that he would not be prosecuted in Arizona if he received a substantial sentence in federal court . However, the day before sentencing, Crowell sought to withdraw his plea. H e alleged he had recently received copies of certain discovery documents whic h he believed bolstered his chances of an acquittal. These discovery documents had been timely provided by the government to Gaddy, but Crowell claimed to be unaware of them. Gaddy sought to have new counsel appointed in case Crowel l wished to pursue a claim1 There is some conflict in the record as to when Cro well received the letter,

which was dated June 1, 1987. In his § 2255 motion , Crowell stated that he arrived at the federal prison on June 10, 1987, and received his mail some days later. At his § 2255 evidentiary hearing, however, Crowell testified that he did not receive the letter until the end of July, 1987. -3- that Gaddy had been ineffective in not providing hi m copies of these discovery materials. The district court held an evidentiary hearing on t hese motions at which Crowell and others testified. The district court d enied the motion to appoint new counsel and the motion to withdraw the plea and sen tenced Crowell to life imprisonment. Gaddy immediately wrote a letter to Crowell recommending that he file an appeal, and informing him of the appeal deadline and how to have the court clerk enter a notice of appeal on his behalf. Gaddy told Crowell to contact him if he wanted any further assistance from Gaddy, though he did not expressly offer to file an appeal for Crowell. Crowell was i n transit to a new prison at the time, and did not receive Gaddy’s letter until afte r the appeal deadline had passed. 1 Crowell did not attempt to contact Gaddy. Crowell did not file his § 2255 motion until ten ye ars later, in 1997. He raised numerous arguments, including a claim that h is guilty plea was not knowing and voluntary and claims that he was denieddue process and ineffective assistance of counsel because he was not informed o f his right to appeal and because Gaddy failed to perfect a direct appeal. A fter Crowell filed his § 2255-4-

motion, it was determined that transcripts of Crowe ll’s 1987 change of plea hearing and sentencing hearing no longer existed. The district court sua sponte determined that Crowell’s § 2255 motion was barred by Rule 9(a) of the Rules Governing § 2255 Proceedings and denied the motion. Rule 9(a) “provides the state with an equitable defense to unjustifiably delayed petitions.” Hannon v. Maschner , 845 F.2d 1553, 1555 (10th Cir. 1988). On appeal, we reversed the ruling that Crowell’s motion was barred by Rule 9(a), holding that it is an affirmative defens e that the government waived by failing to raise it. United States v. Crowell , No. 98-2064, 1999 WL 285855, **3 (10th Cir. Apr. 21, 1999). We affirmed the dismiss al of some of Crowell’s claims as without merit. Id. at **4. We concluded, however, that Crowell’s claims relating to the voluntariness of his guilty plea an d his ineffective assistance of counsel claims could only be resolved by an evident iary hearing and remanded the case to the district court for further proceedings. Id. at **3. The magistrate judge held an evidentiary hearing on remand at which Crowell, Gaddy, and the prosecutor testified. For the first time, the government asserted a Rule 9(a) defense. The magistrate judge again concluded Crowell’s motion was barred by Rule 9(a), but also rejected C rowell’s claims on the merits. The district court adopted the magistrate judge’s r eport and recommendation and dismissed the § 2255 motion.2 While we conclude that the district court’s disposi tion of the merits of

Crowell’s § 2255 petition is not deserving of furth er proceedings, we disagree with its conclusion that the government could raise a Rule 9(a) defense for the first time on remand. In Crowell’s first appeal, w e held that the government waived that defense by failing to assert it in its response to the § 2255 motion. Crowell , 1999 WL 285855, at **3. Our ruling that Rule 9(a ) had been waived became the law of the case and was required to be f ollowed by the district court on remand. See Phelps v. Hamilton , 122 F.3d 1309, 1322 (10th Cir. 1997) (“The law of the case doctrine provides that when a courtdecides upon a rule of law, that decision should continue to govern the same is sues in subsequent stages of the same case.”) (internal quotation omitted); Rohrbaugh v. Celotex Corp. , 53 F.3d 1181, 1183 (10th Cir. 1995) (“[W]hen a case is appealed and remanded, the decision of the appellate court establishes the law of the case and ordinarily will be followed by both the trial court on remand and t he appellate court in any subsequent appeal.”). -5- II. To be entitled to a COA, Crowell must make a “subst antial showing of the denial of a constitutional right.” 28 U.S.C. § 225 3(c)(2). He may make this showing by demonstrating that the issues he raises are debatable among jurists, that a court could resolve the issues differently, or that the questions presented deserve further proceedings. See Slack v. McDaniel , 529 U.S. 473, 483-84 (2000). We have reviewed Crowell’s request for a C OA, his appellate briefs, the magistrate judge’s report and recommendation, adopt ed by the district court, the transcript of the evidentiary hearing held in the d istrict court, and the entire appellate record and conclude that Crowell has fail ed to make the required showing for a COA. 23 Now set forth at Fed. Crim. R. P. 32(c)(5). -6- A. Crowell claims he was denied due process and effect ive assistance of counsel because he was never informed of his right to appeal. The magistrate judge found, with record support, that Crowell was aware of his right to appeal based on (1) evidence that the sentencing judge uni formly advised defendants of their right to appeal using a standardized sentenci ng memorandum, consistent with the court’s obligation under Fed. R. Crim. P. 32(a)(2) (1987) to inform a defendant of his right to appeal; 3 (2) the fact that Crowell had two prior criminal convictions from which he would have had independent knowledge of a defendant’s right to appeal, and (3) his determinat ion that Crowell was not credible when he testified he was unaware he had any right to appeal. Based on these findings, we agree with the magistrate judge that Crowell was not denied due process and effective assistance of counsel due to any failure of the court or his counsel to inform him of his right to appeal.
B. We also agree with the magistrate judge that Gaddy did not provide ineffective assistance by failing to perfect an app eal on Crowell’s behalf. An ineffective assistance claim based upon counsel’s f ailure to file a notice of appeal, like any other ineffective assistance claim , must be judged in accordance-7-

with the two-pronged test described in Strickland v. Washington , 466 U.S. 668, 687-88, 694 (1984), which requires the petitioner t o show that counsel’s representation fell below an objective standard of reasonableness and that the petitioner was prejudiced by counsel’s deficient performance. Roe v. Flores-Ortega , 528 U.S. 470, 476-77 (2000). In cases such as th is one where the defendant has not clearly conveyed to counsel wheth er or not he wishes to pursue an appeal, the court must first ascertain whether c ounsel “consulted” with the defendant regarding a possible appeal by “advising the defendant about the advantages and disadvantages of taking an appeal, a nd making a reasonable effort to discover the defendant’s wishes.” Id . at 478. If deficient performance is established, the defendant is then required to esta blish that there is a reasonable probability that, but for counsel’s deficient failu re to consult with him about an appeal, he would have timely appealed. Id. at 484. Here, Gaddy informed Crowell by letter of his rightto appeal immediately after Crowell’s sentencing hearing. He recommendedthat Crowell file an appeal, informed him of the appeal deadline, and instructed him how to have the court clerk file a notice of appeal on his behalf. Howev er, he did not consult with Crowell in person, nor did he make a further attemp t to contact Crowell to ascertain his wishes. Even if we assume for the sake of argument, however, that Gaddy was deficient in failing to make a reasonable effort to discover Crowell’s-8-

wishes, we nevertheless agree with the magistrate j udge that Crowell failed to show that this deficiency prejudiced him because he failed to establish that, but for Gaddy’s performance, he would have timely appea led. When Crowell received Gaddy’s letter in June or Jul y 1987, he did nothing for weeks, even months. He made no attempt to cont act Gaddy, nor did he make any immediate attempt to file a late appeal. Had h e taken any action upon receipt of Gaddy’s letter, he or Gaddy might have been able to file a request to file a late appeal pursuant to Fed. R. Crim. P. 4(b) (1987), wh ich, as then in effect, authorized the district court to extend the time to file a notice of appeal based on a finding of excusable neglect. Crowell’s first attempt to contact the district court was not until September 1987, when he requested the appointment of counsel. He again sought the appointment of counsel in October 1987 and, in November 1987, wrote a letter to the court seeking copies of docum ents and transcripts. In both October and November, the district court wrote to C rowell explaining that he could raise his claims in a § 2255 motion and the c ourt provided him with the necessary forms and instructions to file such a mot ion. Yet, Crowell waited ten years before filing his § 2255 motion. Thus, the m agistrate judge correctly concluded that Crowell failed to demonstrate that, but for Gaddy’s failure to consult adequately with him, he would have timely appealed.-9- C. Finally, Crowell contends his guilty plea was not k nowing and voluntary because Gaddy withheld three exculpatory documents, failed to inform him that Arizona might still pursue charges against him, andincorrectly told him that any sentence he received in Arizona would run concurrent with his federal sentence. At the time Crowell pled guilty, he signed an affid avit acknowledging that his plea was knowing and voluntary. The affidavit clea rly indicates Crowell was aware of the possibility that Arizona would still p rosecute him. The magistrate judge found no evidence to support Crowell’s claim that Gaddy advised him any Arizona sentence would be concurrent and found, fornumerous reasons, that Crowell’s testimony on this point was not credible. As to the three allegedly undisclosed documents, we have already determined that discovery material similar to one document, an interview with the vict im’s aunt and uncle, was not exculpatory or material. Crowell , 1999 WL 285855 at **4 (ruling on the aunt and uncle’s statement under Brady v. Maryland , 373 U.S. 83 (1963)). Crowell never introduced into the record copies of the remaining two allegedly undisclosed documents, though it is his burden to establish what the allegedly exculpatory evidence is. He claims there was a laboratory resu lt allegedly finding no blood, skin or hair on a piece of rope. We agree with the magistrate judge that such a report would not be exculpatory because there is no evidence it was the rope used-10-

to tie the victim. Crowell also claims there was amedical report of the victim showing that she had no cuts or bruises. We agree with the magistrate judge that such a report, while somewhat exculpatory, would no t necessarily impeach the victim’s statement that Crowell tied her up and rap ed her. Considering all the circumstances, we agree with the magistrate judge t hat the allegedly withheld material did not compromise the voluntary and knowi ng nature of Crowell’s plea. In summary, Crowell failed to make “a substantial s howing of the denial of a constitutional right” and, accordingly, he is not entitled to a COA. See § 2253(c)(1)(B). The magistrate judge wrote a leng thy, thorough, and wellreasoned report and recommendation that was adoptedby the district court. We agree with its analysis and ultimate decision to de ny habeas relief. We DENY Crowell’s application for a COA and DISMISS this appeal.

Entered for the Court Robert H. Henry Circuit Judge