* This order and judgment is not binding precedent, e xcept under the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

** Honorable G. Thomas Van Bebber, Chief Judge, UnitedStates District Court for the District of Kansas, sitting by design ation. 

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

### FEB 12 1997 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. ROBERT ELLIS MARTIN,

Defendant-Appellant. No. 96-6061 (D.C. No. CIV-95-1111-A) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, ** District Judge.
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.-2-

Defendant Robert Ellis Martin appeals the district court’s denial of his motion to vacate, set aside, or correct his sentenc e, brought pursuant to 28 U.S.C. § 2255. The district court concluded all of defend ant's claims were procedurally barred. We agree with the district court's conclus ion except as regards defendant's claims of ineffective assistance of cou nsel at sentencing. We affirm in part, reverse in part, and remand for further pr oceedings. In December 1990, upon conviction for distribution of cocaine base and conspiracy, defendant was sentenced to 240 months’ incarceration. He did not appeal either the convictions or the sentence. In January 1992, defendant filed a motion seeking a late appeal, which was denied in F ebruary 1992. Three and a half years later, defendant filed this § 2255 motio n, raising the following claims: (1) his attorney was ineffective for not filing a d irect appeal; (2) the district court erred in denying his motion for a late appeal; (3) rule 32 of the Federal Rules of Criminal procedure was violated; (4) his sentence w as incorrectly calculated by using an erroneous base level, an improper enhancem ent for obstructing justice, and an incorrect assessment of his role in the offe nse; (5) his attorney was ineffective for not raising certain issues at sente ncing; and (6) the evidence was insufficient to support his conviction for conspira cy. See R. I, doc. 29. In its response, the government alleged that defend ant’s failure to raise his claims in a direct appeal procedurally barred him f rom raising them in this § 2255-3-

motion. Viewing the viability of all of defendant’ s claims as dependent upon his claim that counsel was ineffective for failing to appeal, the district court appointed counsel and ordered an evidentiary hearin g before a magistrate judge on this issue. After the hearing, the magistrate j udge recommended that defendant’s § 2255 motion be denied on the ground that his issues were procedurally barred, finding that defendant had bee n advised of his right to appeal by his attorney, and that he voluntarily waived that right. The district court adopted the findings and recommendation of the magi strate judge after a de novo review, and this appeal followed. On appeal, defendant argues that the district courterred in finding that his counsel was not ineffective for failing to appeal, and that he should have been given an evidentiary hearing on his other issues. We also raised, sua sponte, the question of our jurisdiction in this case, based on the recent amendments to 28 U.S.C. § 2255 under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (the Act). The Act amends § 2255 to limit the time in which a defendant may file such a motio n, under most circumstances, to one year after his conviction became final. See 110 Stat. at 1220. In response to our order, the parties have submitted supplement al briefs on this issue. We conclude that we have jurisdiction to decide thi s case. In United States v. Lopez , 100 F.3d 113, 116-17 (10th Cir. 1996), we held th at the one-year limit-4-

on filing § 2255 motions did not apply to an appeal that was pending when the Act became effective, because such retroactive appl ication would attach new legal consequences to events completed before the Act’s e nactment. Here too, application of the one-year limit would attach new consequences to defendant’s failure to file his motion earlier. The new legisl ation, therefore, does not operate retroactively to preclude defendant’s appeal. When reviewing the denial of a § 2255 motion, we re view the district court’s legal rulings de novo, and its findings of fact for clear error. United States v. Cox , 83 F.3d 336, 338 (10th Cir. 1996). “A claim of i neffective assistance of counsel presents a mixed question of law and fact which we review de novo.” Brewer v. Reynolds , 51 F.3d 1519, 1523 (10th Cir. 1995), cert. denied , 116 S. Ct. 936 (1996). A § 2255 defendant is procedurally barred from rais ing issues that were not raised in a direct appeal, unless he or she establi shes cause for the default and prejudice therefrom, or that manifest injustice wil l result if the claims are barred. United States v. Cook , 45 F.3d 388, 392 (10th Cir. 1995); see United States v. Frady , 456 U.S. 152, 164-68 (1982). This rule applies t o collateral attacks on sentences as well. United States v. Allen , 16 F.3d 377, 378 (10th Cir. 1994). Cause and prejudice may be established by showing that appellate counsel1 In his appellate brief, defendant has identified nu merous errors allegedly

committed by his attorney throughout the trial and sentencing process. See Appellant’s Br. at 20-23, 35-38. His § 2255 motiondid not raise many of these errors, however, asserting only the sentencing erro rs identified at pages 11-14 of his motion. See R. I, doc. 29 at 11-14. We do not consider issues raised for the first time on appeal. See, e.g. , United States v. Griffin , 48 F.3d 1147, 1151 n.6 (10th Cir. 1995). -5- rendered ineffective assistance in failing to appea l meritorious issues. Cook , 45 F.3d at 392-93. Here, the district court found that counsel’s failu re to file a notice of appeal was not ineffective assistance in light of defendan t’s knowing waiver of his right to appeal. Defendant has not demonstrated any erro r in this finding. Because counsel was not ineffective in failing to file an appeal, defendant is procedurally barred from raising any issues in his § 2255 motionthat he did not raise in a direct appeal, with one exception. Defendant has c laimed that his counsel was ineffective in failing to make certain objections a nd motions at sentencing. See R. I, doc. 29 at 11-14. 1 Because the district court found this claim was a lso procedurally barred, it did not address the merits of the ineffective assistance claim or determine whether further factual developm ent was needed. The procedural bar rule does not apply to ineffective a ssistance of counsel claims, however. See United States v. Galloway , 56 F.3d 1239, 1240-41 (10th Cir. 1995) (holding that ineffective assistance claims are notsubject to procedural bar, and that it is province of district court to factually develop record and address merits-6-

of claim). The case must be remanded, therefore, t o the district court for further proceedings only on those ineffective assistance cl aims identified by defendant in pages 11-14 of his § 2255 motion. The judgment of the district court is AFFIRMED in p art, REVERSED in part, and REMANDED for further proceedings on the i ssue of whether counsel was ineffective in his representation of defendant at sentencing. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge