F I L E D

United States Court of Appeals

Tenth Circuit

APR 6 2005

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DELMAR DELANO GARRETT, JR.,

Defendant-Appellant.

No. 03-6176

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 02-CV-36-R)

Submitted on the briefs:

Delmar Delano Garrett, Jr., pro se.

Robert G. McCampbell, United States Attorney; Kim Kakish, Assistant United

States Attorney, Office of the United States Attorney, Oklahoma City, Oklahoma,

for Appellee.

Before LUCERO, McKAY, PORFILIO, Circuit Judges.

McKAY, Circuit Judge.
1 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

2 The pertinent provision of the plea agreement states: 

[Mr. Garrett], in exchange for the promises and concessions

made by the United States in this plea agreement, knowingly and

voluntarily waives his right to appeal or collaterally challenge: 

a. Defendant’s guilty plea and any other aspects of his

conviction. . . . 

(continued...)

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Defendant-appellant Delmar Garrett, proceeding pro se, appeals the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his

sentence. We vacate the district court’s order and remand for further proceedings

to resolve the factual issue of whether Mr. Garrett had requested his attorney to

file a notice of appeal. If he actually made such a request and counsel

disregarded it, Supreme Court and Tenth Circuit authority dictates that he is

entitled to a delayed direct appeal of his criminal sentence. 1 

I. Procedural and Factual Background

Mr. Garrett, along with twelve co-defendants, was indicted for participation

in a drug conspiracy. He entered a plea of guilty to possession with intent to

distribute cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1). Under the

agreement, Mr. Garrett waived his right to appeal or collaterally challenge his 

sentence, except in limited circumstances. 2 In exchange for Mr. Garrett’s plea,
2

(...continued)

b. Defendant’s sentence as imposed by the Court and the manner

in which the sentence is determined, provided the sentence is

within or below the applicable guideline range determined by

the Court to apply to this case, even if the Court rejects one or

more of the positions of the United States or the defendant . . .

concerning the application of the U.S. Sentencing Guidelines;

provided that (i) defendant specifically does not waive the

right to appeal an upward departure from the sentencing

guideline range determined by the Court to apply to this case,

and (ii) his waiver of rights to appeal and to bring collateral

challenges shall not apply to appeals or challenges based on

changes in the law reflected in Tenth Circuit or Supreme Court

cases decided after the date of this agreement which are held

by the Tenth Circuit or Supreme Court to have retroactive

effect. 

R., Doc. 403, at 8-9. 

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the government agreed to dismiss the other three charges made in the indictment

against him. At the plea hearing, Mr. Garrett affirmed his understanding of the

consequences of his plea, including the waiver of the right to appeal. He agreed

that the plea was made voluntarily and said that he was satisfied with the services

of his attorney. 

According to the Presentence Report (PSR), the guideline range for

Mr. Garrett’s sentence was 360 months to life. The government moved for a

downward departure for providing substantial assistance to authorities pursuant to

USSG § 5K1.1. At the sentencing hearing, Mr. Garrett withdrew his previously
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filed objections to the PSR findings. The district court imposed a sentence of 220

months’ imprisonment, giving him “a significant departure downward,”

attributable to Mr. Garrett’s cooperation. Sentencing Tr. at 7 . There was no direct

criminal appeal. 

A year later, Mr. Garrett filed a § 2255 motion asserting that counsel was

ineffective for failing to advise him on the consequences of his plea, failing to

maintain his objections to the PSR calculation, and failing to file an appeal. He

claimed that he had specifically requested his attorney to file a notice of appeal,

but the attorney “refused to do so.” R., doc. 761, at 2. The government provided

an affidavit from Mr. Garrett’s attorney with a different version of the parties’

discussion. The attorney averred that, in relation to the plea agreement, he advised

Mr. Garrett that he was waiving his right to appeal except under “very limited

circumstances” and that the waiver “was a part of the plea agreement package.” 

Id., doc. 789, ex. A at 1. According to the attorney, Mr. Garrett had not asked to

appeal his sentence; he asked whether he could appeal. The attorney’s “response

was ‘No,’ due to the fact that [Mr. Garrett] had waived his right to a direct appeal

in his plea agreement.” Id. 

The district court determined that Mr. Garrett’s § 2255 motion could be

decided without engaging in factfinding on the question of whether Mr. Garrett

had asked the attorney file a notice of appeal. The court concluded that, in any
3 Though the COA order specified the issue on which defendant “made a

substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c), 

the government’s brief failed to respond to this court’s question. Indeed, the

government substituted its own ipse dixit for legal analysis: “counsel did not

render ineffective assistance by failing to file a notice of appeal because the

Defendant effectively waived his right to appeal.” Aplee. Br. at 8. Counsel’s

disregard of the COA issue undermines the proper functioning of the appellate

process and we do not condone it. 

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case, the attorney “cannot be faulted for failing to file a notice of appeal when his

client had expressly waived his appellate rights.” Id. , doc. 835, at 5. The court

therefore denied Mr. Garrett’s motion and request for a certificate of appealability

(COA).

On Mr. Garrett’s renewed request in this court, we granted COA on the

issue of “[w]hether counsel for defendant was ineffective for failing to file a

Notice of Appeal where defendant had knowingly and willingly waived his right to

appeal in a plea agreement.” 10th Cir. Order filed Feb. 27, 2004. In resolving this

query, we review the district court’s legal rulings de novo and its findings of fact

for clear error. United States v. Cockerham, 237 F.3d 1179, 1181 (10th Cir.

2001). 3

II. Legal Discussion

The COA question incorporates two themes previously addressed by the

Supreme Court and this court. The first theme concerns the duty of counsel to

perfect an appeal of a criminal conviction. See Roe v. Flores-Ortega , 528 U.S.
4 We note that the per se rules are applicable only when “counsel in fact

consulted with the defendant about an appeal.” Flores-Ortega, 528 U.S. at 478. 

In this context, the term “‘consult’” is used “to convey a specific meaning –

advising the defendant about the advantages and disadvantages of taking an

appeal, and making a reasonable effort to discover the defendant’s wishes.” Id. 

In the absence of a consultation, the question becomes whether the “failure to

consult with the defendant itself constitutes deficient performance.” Id. This

subsidiary issue is analyzed under an adaptation of the two-pronged test described

in Strickland v. Washington, 466 U.S. 668, 687-89 (1984). Flores-Ortega, 528

U.S. at 479. 

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470 (2000); United States v. Snitz, 342 F.3d 1154 (10th Cir. 2003). The second

involves the analysis and procedure for appeals brought by defendants who have

waived their appellate rights in a plea agreement. See United States v. Hahn ,

359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Taken together, the

holdings of these three cases point the way to the proper resolution of the COA

question.

A. Duty of Counsel to File a Notice of Appeal

The Supreme Court has provided bright-line rules for evaluating an

ineffective-assistance claim based on the performance of an attorney who has

consulted with a criminal defendant about an appeal. Roe v. Flores-Ortega ,

528 U.S. 477-78. 4

 A defendant who explicitly instructs his attorney “ not to file

an appeal cannot later complain that, by following his instructions, his counsel

performed deficiently.” Id. at 477. On the other hand, a lawyer who fails to

follow a defendant’s express instructions to file a notice of appeal acts in a
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manner that is professionally unreasonable.” Id. at 477-78. And, if counsel does

not “file a requested appeal, a defendant is entitled to [a new] appeal without a

showing that his appeal likely would have had merit.’” Id. at 477 (quoting

Peguero v. United States , 526 U.S. 23, 28 (1999)).

We applied the above rules in Snitz, a pro se § 2255 case brought by a

federal prisoner who alleged that his counsel had failed to pursue the direct

appeal he had requested. 342 F.3d at 1155. The district court denied defendant’s

motion, on the basis that the defendant would not have won on either of the two

arguments he wished to present on appeal. Id. at 1156. This court observed,

however, that the Supreme Court has “recognized repeatedly . . . that a lawyer

who disregards specific instructions to perfect a criminal appeal acts in a manner

that is both professionally unreasonable and presumptively prejudicial.” Id. at

1155-56; see also id. at 1157 (stating that “when courts find that a requested

appeal has not been taken, they do not consider the merits of arguments that the

defendant might have made on appeal ”) (quotations omitted). 

We also discussed the basic principle that, unless a defendant elects to

proceed pro se, “every direct criminal appeal must be briefed on the merits by

counsel and decided accordingly by the court unless, after thorough review of all

pertinent proceedings, the appeal is determined initially by counsel and then

independently by the court to be wholly frivolous.” Id. at 1157. A court “may
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not allow an attorney to withdraw until it satisfies itself that the attorney has

provided the client with a diligent and thorough search of the record for any

arguable claim that might support the client’s appeal.” Id. at 1158 (internal

quotation marks and brackets omitted). 

In sum, we concluded that the district court’s approach was “not only

foreclosed as a matter of specific precedent,” it was also “contrary to broader

values embodied in and implemented by the criminal appellate process.” Id. at

1156. Allowing the defendant to proceed in spite of unpersuasive pro se

arguments is not “a matter of formalistic compliance with a technical rule merely

postponing the inevitable denial of relief on the merits.” Id. at 1157. Rather, it

serves to “safeguard[] important interests with concrete and potentially

dispositive consequences which can be guaranteed only by the direct-appeal

process and the concomitant right to counsel.” Id. 

B. Appeals by defendants who have waived their appellate rights

“Given the importance of plea bargaining to the criminal justice system,

we generally enforce plea agreements and their concomitant waivers of appellate

rights.” Hahn , 359 F.3d at 1318. “Nevertheless . . . , a defendant who waives

his right to appeal does not subject himself to being sentenced entirely at the

whim of the district court. Id. (quotation omitted). To meet the two “competing

goals” of enforcing plea agreements and “subject[ing] sentencing decisions to
5 Mr. Garrett’s plea agreement also provided for a waiver of his right to

collaterally challenge his guilty plea or sentence. The government has not argued

that this waiver bars a § 2255 motion based on counsel’s failure to file a

requested appeal. Further, the plain language of the waiver does not address the

type of claim he has raised. United States v. Anderson, 374 F.3d 955, 957 (10th

Cir. 2004) (stating that “we will strictly construe appeal waivers and any

ambiguities in these agreements will be read against the Government and in favor

of a defendant’s appellate rights”). 

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review for miscarriages of justice,” we have settled upon the following analysis

and procedure to deal with a defendant who has waived the right to appeal his

sentencing decision. Id.

Before considering such a defendant’s appellate arguments, we apply a

three-prong enforcement test. The court of appeals determines: (1) whether the

disputed appeal falls within the scope of defendant’s waiver of appellate rights;

(2) whether the defendant knowingly and voluntarily waived his appellate rights;

and (3) whether enforcing the waiver would result in a miscarriage of justice. 

Id. at 1325. “If the panel finds that the plea agreement is enforceable, it will

summarily dismiss the appeal” without considering its underlying merits. Id. at

1328. A summary and efficient dismissal of a waived appeal “preserve[s] the

benefit of the government’s bargain.” Id.

III. Application to Mr. Garrett’s § 2255 motion

Here, Mr. Garrett signed a plea agreement waiving many of his appellate

rights. 5 The present record shows that he and his attorney consulted about the
6

 The district court’s ruling was entered after the Supreme Court announced

Flores-Ortega, but before this court issued either Snitz or Hahn. For its

conclusion, the court cited several unpublished cases from other circuit courts of

appeal and district courts, many of which were decided without the guidance of

Flores-Ortega.

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possibility of an appeal of his sentence. The two parties, however, recount

different versions of their discussion. Mr. Garrett asserts that he requested his

attorney to file a notice of appeal; his attorney claims that Mr. Garrett did not

explicitly ask for an appeal. 

The district court decided that a resolution of this factual dispute was

unnecessary because “[m]ost courts . . . have held that a defense attorney does

not render ineffective assistance by failing to file a notice of appeal where the

defendant has effectively waived his right to appeal.” R., Doc. 835, at 4 & n.4. 

This proposition cannot be reconciled with the Supreme Court’s holding in

Flores-Ortega and this court’s statements in Snitz.

6

 In fact, whether or not

Mr. Garrett instructed his attorney to file a notice of appeal is the crux of his

§ 2255 case. 

Mr. Garrett’s appellate rights have been significantly limited by his

waiver, but the waiver does not foreclose all appellate review of his sentence. 

See Hahn , 359 F.3d at 1318. If Mr. Garrett actually asked counsel to perfect an

appeal, and counsel ignored the request, he will be entitled to a delayed appeal. 

See Snitz , 342 F.3d at 1157. This is true regardless of whether, from the limited
7 Our holding is limited to the issue of Mr. Garrett’s possible entitlement to a

direct appeal based on his claim that counsel failed to file a requested appeal. We

do not consider any of the remaining issues he asserts in this matter. See Fields v.

Gibson, 277 F.3d 1203, 1216 n.8 (10th Cir. 2002).

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perspective of collateral review, it appears that the appeal will not have any

merit. Flores-Ortega , 528 U.S. at 477, 484-85; Snitz, 342 F.3d at 1155-56. Any

resulting criminal appeal will initially be evaluated under the summary procedure

and analysis described in Hahn , 359 F.3d at 1328. 7

We vacate the district court’s order and remand this case for a hearing to

determine whether Mr. Garrett requested counsel to file a notice of appeal. 

Mr. Garrett’s motion for leave to proceed in forma pauperis is GRANTED, as is

the government’s motion to supplement the record on appeal.