from the United States District Court for the District of
Utah D.C. Nos. 2:17-CV-00410-TS and 2:15-CR-00743-TS-1
Zachary L. Newland (Brandon C. Sample, with him on the
briefs), Brandon Sample PLC, Rutland, Vermont, for
Jennifer P. Williams, Assistant United States Attorney (John
W. Huber, United States Attorney, with her on the brief),
Salt Lake City, Utah, for Plaintiff-Appellee.
MATHESON, EBEL, and PHILLIPS, Circuit Judges.
Herring appeals from the denial by the district court of his
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255. We granted a certificate of appealability
to determine whether the district court erred in denying,
without a hearing, Herring's claim that his trial
counsel's failure to consult with him about an appeal
constituted ineffective assistance of counsel. We exercise
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).
We conclude that the district court abused its discretion
under 28 U.S.C. § 2255(b) by failing to hold an
evidentiary hearing to resolve Herring's section 2255
motion because the record does not "conclusively
show" that Herring is entitled to no relief. Thus, we
VACATE the district court's dismissal of Herring's
motion and REMAND for an evidentiary hearing.
2, 2016, Herring pled guilty to one count of possession of
child pornography pursuant to a plea agreement, which
included a waiver of many of Herring's appeal rights,
except for his ability to appeal claims of ineffective
assistance of counsel. In exchange for Herring's guilty
plea, the government agreed to recommend at sentencing a term
of incarceration at the low end of the Sentencing Guideline
range, which was 78-97 months. The district court sentenced
Herring to sixty months' imprisonment. At the sentencing
hearing, the district court advised Herring that, despite
waiving many of his appellate rights through the plea
agreement, he retained the right to appeal under very narrow
circumstances. The district court informed Herring that any
notice of appeal he wished to file was due fourteen days
after the entry of judgment and that, if he requested it, the
Clerk of Court would prepare and file a notice of appeal on
his behalf. Finally, the district court explained that the
court could appoint an attorney for Herring on appeal if he
could not afford one.
was entered in Herring's case on May 5, 2016. That same
day, Herring met with his trial counsel. In his section 2255
motion, Herring alleged that he told his attorney
"specifically that he wanted to appeal his case,"
Aplt. Appx. at 34. (Although he concedes on appeal that he
did not explicitly command his attorney to file a notice of
appeal.) According to the motion, in response, Herring's
attorney said that "he did not do appellate work and
that he would not be able to do it. . . . [Herring's
trial counsel] flatly stated [that Herring] had waived [his]
right to appeal in the plea agreement and offered no further
options other than to contact another attorney."
Id. at 18. Furthermore, Herring alleged that his
attorney never told him that "there was no merit to
appealing his case" nor offered any other "advice
regarding appealing" besides referring Herring to other
attorneys. Id. at 35.
trial counsel's account of what happened on May 5 appears
in his affidavit in the record. There, he describes the
exchange as follows:
I told Mr. Herring that I do not do any appellate work and
that he would need to find another attorney on or about May
5, 2016. I sent a request out to a Utah Association of
Criminal Defenders Lawyers forum
requesting appellate attorneys on or about May 5, 2016. I
received a list of attorneys who had Federal appellate
expertise. I gave that list to him, and I discussed the case
with one of those attorneys, Ann Marie Taliaferro. She
indicated that my advice was correct, and he had no appellate
rights he could use. I was never asked by Mr. Herring to file
an appeal on his behalf.
Id. at 32-33 (formatting removed). Soon after their
May 5 conversation, the attorney mailed Herring a list of
three appellate attorneys for Herring to contact. The trial
counsel had no contact with Herring after that point. Herring
did not contact any of the attorneys on the list nor the
district court to seek the appointment of counsel nor the
Clerk of Court to request that the Clerk file his notice of
appeal. The deadline for filing a notice of appeal came and
went, and Herring never filed.
subsequently filed a 28 U.S.C. § 2255 motion pro se,
claiming his attorney was ineffective for failing to consult
with him about the advantages and disadvantages of filing an
appeal. The district court dismissed Herring's
motion without holding an evidentiary hearing. Herring
appeals, arguing that he was entitled to a hearing and that
the district court wrongly decided the merits of his
ineffective assistance of counsel claim.
2255(b) instructs district courts: "[u]nless 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." Ordinarily, when reviewing the denial
of a section 2255 motion, "we review for clear error the
district court's factual findings, and we review legal
conclusions de novo." United States v. Mora,
293 F.3d 1213, 1216 (10th Cir. 2002). However, when a
district court refuses to grant an evidentiary hearing and
denies a section 2255 motion, our review proceeds in two
steps. Weeks, 653 F.3d at 1200. First, we ask
whether the defendant's allegations, if proved, would
entitle him to relief, id., an inquiry we conduct de
novo, United States v. Rushin, 642 F.3d 1299, 1302
(10th Cir. 2011). If so, we then determine whether the denial
of the evidentiary hearing constituted an abuse of
discretion. Weeks, 653 F.3d at 1200; see also
United States v. Estrada, 849 F.2d 1304, 1305 (10th Cir.
1988). Here, we hold that, if true, the facts Herring alleged
in his section 2255 motion to support his ineffective
assistance of counsel claim would entitle him to relief.
Therefore, the record does not "conclusively show"