## 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 K akish, Assistant United States Attorney, Office of the United States Attorn ey, Oklahoma City, Oklahoma, for Appellee.

Before LUCERO , McKAY , PORFILIO , Circuit Judges.

McKAY , Circuit Judge.1 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 The pertinent provision of the plea agreement state s:

[Mr. Garrett], in exchange for the promises and con cessions made by the United States in this plea agreement, k nowingly and voluntarily waives his right to appeal or collatera lly challenge: a. Defendant’s guilty plea and any other aspects of his conviction. . . . (continued...) -2- Defendant-appellant Delmar Garrett, proceeding pro se, appeals the district court’s denial of his 28 U.S.C. § 2255 motion to va cate, 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. Garretthad 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 aut hority 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 i ndicted 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 o r 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 andthe manner in which the sentence is determined, provided the s entence is within or below the applicable guideline range dete rmined 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 d efendant . . . concerning the application of the U.S. Sentencing G uidelines; provided that(i) defendant specifically does not waive the right to appeal an upward departure from the senten cing guideline range determined by the Court to apply to this case, and (ii) his waiver of rights to appeal and to brin g 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 whic h are held by the Tenth Circuit or Supreme Court to have retro active effect. R., Doc. 403, at 8-9.

-3- the government agreed to dismiss the other three ch arges made in the indictment against him. At the plea hearing, Mr. Garrett affi rmed his understanding of the consequences of his plea, including the waiver of t he 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 guid eline range for Mr. Garrett’s sentence was 360 months to life. The government moved for a downward departure for providing substantial assist ance to authorities pursuant to USSG § 5K1.1. At the sentencing hearing, Mr. Garr ett withdrew his previously-4-

filed objections to the PSR findings. The districtcourt imposed a sentence of 220 months’ imprisonment, giving him “a significant dep arture 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 ass erting that counsel was ineffective for failing to advise him on the conseq uences 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 atto rney 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 dif ferent 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 t he 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 wa ived 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 ques tion of whether Mr. Garrett had asked the attorney file a notice of appeal. Th e court concluded that, in any3 Though the COA order specified the issue on which d efendant “made a

substantial showing of the denial of a constitution al right,” 28 U.S.C. § 2253(c), the government’s brief failed to respond to this co urt’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 fu nctioning of the appellate process and we do not condone it. -5- case, the attorney “cannot be faulted for failing t o 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 f or 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 ineff ective 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 previouslyaddressed by the Supreme Court and this court. The first theme conc erns 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 w hen “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 c onvey a specific meaning – advising the defendant about the advantages and dis advantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes.” Id. In the absence of a consultation, the question beco mes whether the “failure to consult with the defendant itself constitutes defic ient 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. -6- 470 (2000); United States v. Snitz, 342 F.3d 1154 (10th Cir. 2003). The second involves the analysis and procedure for appeals bro ught 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 fo r evaluating an ineffective-assistance claim based on the performan ce 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 anotice of appeal acts in a-7-

manner that is professionally unreasonable.” Id. at 477-78. And, if counsel does not “file a requested appeal, a defendant is entitl ed 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 f ailed to pursue the direct appeal he had requested. 342 F.3d at 1155. The di strict court denied defendant’s motion, on the basis that the defendant would not h ave 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 rep eatedly . . . that a lawyer who disregards specific instructions to perfect a c riminal 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 req uested 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 ini tially by counsel and then independently by the court to be wholly frivolous.” Id. at 1157. A court “may-8-

not allow an attorney to withdraw until it satisfie s itself that the attorney has provided the client with a diligent and thorough se arch 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 appr oach 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 o f unpersuasive pro se arguments is not “a matter of formalistic complianc e 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 con crete and potentially dispositive consequences which can be guaranteed on ly by the direct-appeal process and the concomitant right to counsel.” Id. B. Appeals by defendants who have waived their appell ate rights “Given the importance of plea bargaining to the cri minal justice system, we generally enforce plea agreements and their conc omitant waivers of appellate rights.” Hahn , 359 F.3d at 1318. “Nevertheless . . . , a defend ant who waives his right to appeal does not subject himself to bei ng sentenced entirely at the whim of the district court. Id. (quotation omitted). To meet the two “competing goals” of enforcing plea agreements and “subject[in g] sentencing decisions to5 Mr. Garrett’s plea agreement also provided for a wa iver 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 coun sel’s failure to file a requested appeal. Further, the plain language of t he 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 agains t the Government and in favor of a defendant’s appellate rights”). -9- review for miscarriages of justice,” we have settle d upon the following analysis and procedure to deal with a defendant who has waiv ed the right to appeal his sentencing decision. Id. Before considering such a defendant’s appellate arg uments, 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 voluntarilywaived his appellate rights; and (3) whether enforcing the waiver would result i n a miscarriage of justice. Id . at 1325. “If the panel finds that the plea agree ment is enforceable, it will summarily dismiss the appeal” without considering its underlying merits. Id . at 1328. A summary and efficient dismissal of a waive d 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 m any of his appellate rights. 5 The present record shows that he and his attorneyconsulted about the6 The district court’s ruling was entered after the Supreme Court announced

Flores-Ortega , but before this court issued either Snitzor Hahn . For its conclusion, the court cited several unpublished cas es from other circuit courts of appeal and district courts, many of which were deci ded without the guidance of Flores-Ortega

. -10- 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 c laims that Mr. Garrett did not explicitly ask for an appeal. The district court decided that a resolution of thi s factual dispute was unnecessary because “[m]ost courts . . . have held that a defense attorney does not render ineffective assistance by failing to fil e a notice of appeal where the defendant has effectively waived his right to appea l.” R., Doc. 835, at 4 & n.4. This proposition cannot be reconciled with the Supr eme 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 notic e of appeal is the crux of his § 2255 case. Mr. Garrett’s appellate rights have been significan tly limited by his waiver, but the waiver does not foreclose all appel late 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 whe ther, from the limited7 Our holding is limited to the issue of Mr. Garrett’ s possible entitlement to a

direct appeal based on his claim that counsel faile d to file a requested appeal. We do not consider any of the remaining issues he asse rts in this matter. See Fields v. Gibson, 277 F.3d 1203, 1216 n.8 (10th Cir. 2002). -11- perspective of collateral review, it appears that t he 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 evaluat ed under the summary procedure and analysis described in Hahn , 359 F.3d at 1328. 7
We vacate the district court’s order and remand thi s 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 onappeal.