D.C. Nos. 5:11-CV-04083-SAC and5:10-CR-40035-SAC-1 (D. Kan.)
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
ORDER AND JUDGMENT[*]
JEROME A. HOLMES Circuit Judge
Dion Lee-Speight, a federal prisoner, appeals from the district court's order dismissing his motion to vacate his original sentence under 28 U.S.C. § 2255. Specifically, Mr. Lee-Speight challenges the denial of his request for an evidentiary hearing relating to his § 2255 motion. We conclude that Mr. Lee-Speight is entitled to further factual development on his claim of ineffective assistance of counsel. We reverse and remand with directions to the district court to vacate its original judgment and further develop the factual record as necessary to resolve in the first instance the merits of his § 2255 motion, consistent with the discussion herein.
We previously set out the facts and procedural history in our order granting Mr. Lee-Speight a Certificate of Appealability ("COA") on the issue that is now before us on appeal. See Order Granting in Part & Den. in Part a COA, No. 11-3387, at *2–4 (10th Cir., filed Feb. 11, 2013) [hereinafter COA Order]. We include only a brief review of the relevant procedural history here.
Mr. Lee-Speight filed an untimely direct appeal, which we dismissed as such. He then filed a timely § 2255 motion challenging his conviction on three grounds. The district court denied Mr. Lee-Speight's claims on the merits and denied him a COA. Mr. Lee-Speight then sought a COA from our court on all three grounds raised before the district court. We granted Mr. Lee-Speight's request for a COA on one claim and denied his request as to the other two claims. Specifically, we granted Mr. Lee-Speight a COA regarding his first claim, which alleged ineffective assistance of counsel in failing to file a notice of appeal. This is the sole claim before us on appeal.
Mr. Lee-Speight alleges that his counsel failed to file a direct appeal, and he seeks a remand so that his claim can be further developed in the district court. The government responds that Mr. Lee-Speight's "bare assertion" that he requested that his counsel notice an appeal is not enough. Specifically, it contends that because Mr. Lee-Speight did not allege that his request was timely, he did not meet his burden of alleging facts which if proved would entitle him to relief.
"In considering the denial of a § 2255 motion for post-conviction relief, we review the district court's findings of fact for clear error and its conclusions of law de novo." United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011); see United States v. Garrett, 402 F.3d 1262, 1264 (10th Cir. 2005). "[A]n ineffective assistance of counsel claim presents a mixed question of law and fact ultimately reviewable de novo." Rushin, 642 F.3d at 1302; see United States v. Orange, 447 F.3d 792, 796 (10th Cir. 2006).
When pursuing an ineffective-assistance-of-counsel claim under § 2255, a defendant's burden is two-fold: he must establish that "(1) defense counsel's performance was deficient, i.e., counsel's 'representation fell below an objective standard of reasonableness' as measured by 'prevailing professional norms, '" and that "(2) defendant was prejudiced thereby, i.e., 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Rushin, 642 F.3d at 1302 (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
It has long been recognized that "an appeal from a District Court's judgment of conviction in a criminal case . . . [is] a matter of right." Rodriquez v. United States, 395 U.S. 327, 329–30 (1969) (quoting Coppedge v. United States, 369 U.S. 438, 441 (1962)) (internal quotation marks omitted); see Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Peguero v. United States, 526 U.S. 23, 28 (1999). Thus when "a lawyer . . . disregards specific instructions to perfect a criminal appeal [he] acts in a manner that is both professionally unreasonable and presumptively prejudicial." United States v. Snitz, 342 F.3d 1154, 1155–56 (10th Cir. 2003); see Flores-Ortega, 528 U.S. at 477. In such a case, the defendant "is entitled to . . . an appeal without showing that his appeal would likely have had merit." Peguero, 526 U.S. at 28; see United States v. Guerrero, 488 F.3d 1313, 1315 (10th Cir. 2007).
In short, should Mr. Lee-Speight demonstrate that he actually requested (in a timely fashion) that his attorney file an appeal, this alone satisfies his burden under Strickland because no appeal was filed. See COA Order, at *7; see also Snitz, 342 F.3d at 1155–56. A chance to show as much is all Mr. Lee-Speight seeks in this appeal. And as discussed below, he is entitled to such a chance.
Section 2255(b) provides: "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." The district court found that Mr. Lee-Speight's "bare allegation that he requested his counsel to file an appeal" was "vague, conclusory and palpably incredible." R. at 152 (Mem. & Order, filed Nov. 1, 2011). But given Mr. Lee-Speight's sworn statement that his sentencing counsel "failed to file a notice of appeal . . . as requested by petitioner to do so, " id. at 26 (Mot. Under 28 U.S.C. § 2255, ,  and given that this is the only evidence regarding his request to counsel—viz., there is no evidence showing that Mr. Lee-Speight did not make such a request—the district court was incorrect in finding that this statement was but a "bare allegation" and, further, that it was "vague, conclusory and palpably incredible."Cf. United States v. Harrison, 375 F.App'x 830, 833–34 (10th Cir. 2010) (concluding that the petitioner was not entitled to a COA on his claim that his counsel had ...