* This order and judgment is not binding precedent, e xcept under the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

### APR 24 1997 

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

UNITED STATES OF AMERICA and LEE R. WEST, District Judge,

Plaintiffs-Appellees,

v. RODERICK AARON PIGGEE,

Defendant-Appellant. No. 96-6111 (D.C. No. CIV-95-1223-W) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK, EBEL, and LUCERO, 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Because defendant filed his notice of appeal on Mar ch 21, 1996, before the

enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) , he is not required to obtain a certificate of appealability under 28 U.S.C. § 22 53(c), nor is his § 2255 motion barred because it was not filed within the one-yearlimitation period set forth in the revised § 2255. See United States v. Lopez , 100 F.3d 113, 116 (10th Cir. 1996). -2- Defendant Roderick Aaron Piggee appeals from the di strict court’s denial of his motion for relief under 28 U.S.C. § 2255. 1 We have jurisdiction under 28 U.S.C. § 1291, and affirm. Defendant was arrested in October 1990 after being implicated in a drug trafficking conspiracy. He was charged in a five-c ount indictment, and retained Michael Gassaway as his counsel. Mr. Gassaway nego tiated a plea agreement under which four counts of the indictment would be dismissed, along with an information the government had filed to establish d efendant’s prior convictions for the purpose of enhancing his sentence, in excha nge for defendant’s plea of guilty to count one of the indictment, conspiracy t o possess with intent to distribute cocaine base. The effect of dismissing the information was to reduce the mandatory minimum sentence on the conspiracy ch arge from twenty to ten years. Defendant entered his guilty plea under thi s agreement at a change of plea hearing, after the court explained--and defendant s aid he understood--the charge and the maximum punishment it carried. At his Marc h 14, 1991 sentencing, defendant grudgingly admitted his guilt in the char ged crack cocaine trafficking-3-

conspiracy, to support his motion for a two-level d ownward adjustment for acceptance of responsibility. The district court g ranted the motion--over the prosecutor’s protest--which resulted in a guideline range of 210 to 262 months. The court sentenced defendant to 210 months’ impris onment, five years’ supervised release, and a $50.00 special assessment . The district court advised defendant of his right to appeal, and to appeal in forma pauperis. After this § 2255 motion was filed, Mr. Gassaway fi led an affidavit in which he stated that he had been hired for trial co urt proceedings only, not for appeal, and that his services were expressly termin ated after defendant was sentenced. Mr. Gassaway attached to his affidavit a copy of a letter dated March 21, 1991, which he said was hand-delivered to defendant in jail, reminding defendant that he needed to file a notice of appeal by March 25, 1991, and could retain counsel if he desired. On March 25, 1991, d efendant’s mother sent a letter to the district court advising the court that defen dant wished to appeal. The district court clerk docketed this letter as a moti on for extension of time. On April 22, without ruling on the motion for extensio n of time, the district court amended the judgment to correct a clerical error, a nd defendant’s newly-retained counsel then filed a notice of appeal. We determin ed that we lacked jurisdiction over the appeal because the clerical amendment did not renew the time for filing the notice of appeal, and noted that the district c ourt had not ruled on defendant’s-4-

motion for extension of time. See United States v. Piggee , No. 91-6179, 1992 WL 113749 (10th Cir. May 29, 1992) (unpublished). On July 8, 1992, the district court denied defendant’s motion for extension of ti me because he had failed to demonstrate excusable neglect for not timely filing an appeal. On August 9, 1995, defendant filed this motion to set aside his conviction and sentence under 28 U.S.C. § 2255, which the district court denied. On appeal, defendant argues that: (1) his guilty p lea was obtained as a result of his counsel’s negligence and fraud and th erefore must be set aside; (2) he is entitled to a hearing to determine whether he was selectively prosecuted; (3) his sentence was based on the wrong guideline level and was fundamental error; and (4) he was denied effective assistance of couns el during pre-trial proceedings, plea negotiations, sentencing, and on appeal. Because defendant failed to timely file a direct ap peal, his claims are barred unless he can show cause for his procedural default and actual prejudice resulting from the alleged errors, or can show thata fundamental miscarriage of justice will result if we do not review his claims. See United States v. Cook , 997 F.2d 1312, 1320 (10th Cir. 1993) (citing United States v. Frady , 456 U.S. 152, 167-68 (1982)). We review de novo whether a defend ant’s claims are procedurally barred. See United States v. Allen , 16 F.3d 377, 378 (10th Cir. 1994).-5-

Defendant cannot show a fundamental miscarriage of justice will result from the bar because a defendant cannot be actually innocent of a non-capital sentence and he does not claim to be actually innoc ent of the offense of conviction. See United States v. Richards , 5 F.3d 1369, 1371 (10th Cir. 1993) (citing Murray v. Carrier , 477 U.S. 478, 495-96 (1986), and Sawyer v. Whitle y , 505 U.S. 333, 339-41 (1992)). Moreover, defendant has not shown cause and prejudi ce. He argues that ineffective assistance of counsel establishes cause . See McCleskey v. Zant , 499 U.S. 467, 494 (1991). We review the district court ’s underlying factual findings for clear error and whether counsel was ineffective de novo. See United States v. Haddock , 12 F.3d 950, 955 (10th Cir. 1993). Defendant mus t show that counsel’s performance rendered the proceeding fundamentally u nfair or unreliable. See United States v. Kissick , 69 F.3d 1048, 1055 (10th Cir. 1995). Reviewed un der these standards, the record does not support defend ant’s claim of ineffective assistance of counsel at any stage of the proceedin gs. Ultimately, defendant knowingly and voluntarily entered a guilty plea, wa s aware of his right to appeal, and knew before the deadline that no appeal had bee n filed by his former defense counsel. Defendant nevertheless did not file a not ice of appeal. Therefore, defendant’s challenges to his conviction and senten ce are procedurally barred.-6-

Defendant has made no threshold showing to support his constitutional claim of selective prosecution. See United States v. Armstrong , 116 S. Ct. 1480, 1488-89 (1996). Therefore, he is not entitled to ahearing on this claim. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge-1-

United States v. Piggee , No. 96-6111 LUCERO, J., Dissenting. I dissent from the majority’s conclusion that Mr. P iggee’s claims are procedurally barred and that “the record does not s upport defendant’s claim of ineffective assistance of counsel at any stage of t he proceedings.” Majority Op. at 6. Certainly, “a defendant’s failure to presentan issue on direct appeal bars him from raising the issue in his § 2255 motion, un less he can show cause excusing his procedural default and actual prejudic e resulting from the errors of which he complains . . . .” United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993). However, neither the majority opinion nor the district court’s order considers Mr. Piggee’s contention that his failure to perfect a direct appeal was the direct result of his attorney’s ineffective ass istance. In my opinion, the record demonstrates that Mr. Piggee’s attorney was asked t o file a notice of appeal and failed to do so. Failure to perfect an appeal itse lf constitutes ineffective assistance of counsel. See Abels v. Kaiser, 913 F. 2d 821, 823 (10th Cir. 1990). An attorney’s error that amounts to constitutionall y ineffective assistance of counsel provides cause to excuse a procedural defau lt. Rogers v. United States, 91 F.3d 1388, 1391 (10th Cir. 1996). In my view the district court never considered this issue. Even were we to assume an implied district court finding that Mr. P iggee never wanted to appeal-2-

and never asked his retained counsel to appeal, suc h assumed finding would be clearly erroneous. In his supporting affidavit, Mr . Piggee states that he requested his attorney, to whom he paid at least $15,000, to take an appeal and that the attorney promised to do so. Appellant’s App. at 23 1-32. A letter written to the sentencing court by Mr. Piggee’s mother, requesting an extension of time to file a notice of appeal, corroborates Mr. Piggee’s asserti on and clearly demonstrates an intent to take an appeal. Id. at 140; see also Aar on Piggee’s Aff., id. at 220 (attorney represented that he would defend Mr. Pigg ee until the end, “whether it took ten minutes or ten years”); Barbara Piggee’s A ff., id. at 214 (stating that attorney promised to discuss strategy for appeal wi th appellant, but “never showed up”). The attorney, Michael Gassaway, has submitted an artfully crafted affidavit that does not contradict Mr. Piggee’s assertion that he asked Mr.Gassaway to take an appeal on his behalf or that Mr. Gassaway agreedto file a notice of appeal. Rather, Mr. Gassaway merely states: “Mr. Piggee hi red me to represent him at the trial court level only. I was never hired to d o any appeal whatsoever and was specifically released and discharged subsequent to his sentencing.” Supp. App. at 23. There is no evidence in the record that sugges ts Mr. Gassaway requested leave to withdraw from the court or that the court dismissed him from his representation of Mr. Piggee. The government submi ts as evidence a letter from-3-

Mr. Gassaway informing Mr. Piggee of his right to appeal. Supp. App. at 38. This letter, however, does not shed light on whethe r Mr. Piggee actually requested Mr. Gassaway to take an appeal on his behalf. In my mind, the uncontradicted evidence strongly demonstrates Mr. Piggee’s stated desire to appeal his sentence. Under these circumstances, the attorney’s failure t o file a timely notice of appeal for his incarcerated client because he was hired “t o represent [Mr. Piggee] at the trial court level only” is professionally unreasonable and denies effective assistance. In cases where an attorney’s ineffective assistance is the reason no appeal was filed, prejudice will be presumed. See Abels, 913 F.2d at 823; Hannon v. Maschner, 845 F.2d 1553, 1558 (10th Cir. 1988). “[ W]hen courts have found counsel constitutionally inadequate, because eitherretained or appointed counsel failed to properly perfect an appeal, they do not c onsider the merits of arguments that the defendant might have made on appeal.” Abe ls, 913 F.2d at 823. Accordingly, the proper remedy is to allow Mr. Pigg ee to be resentenced to enable him to perfect an appeal. See United States v. Moo re, 83 F.3d 1231, 1233 (10th Cir. 1996). For the foregoing reasons, I respectfully dissent.