                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS July 17, 2013
                            TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                         No. 11-3387
                                             (D.C. Nos. 5:11-CV-04083-SAC and
 v.
                                                   5:10-CR-40035-SAC-1)
                                                          (D. Kan.)
 DION M. LEE-SPEIGHT,

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


      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



      *
             After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.

      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
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. 1

                                          I

      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


      1
             Because Mr. Lee-Speight is a federal prisoner and thus our review is
under § 2255, factual development in the federal district court on habeas review is
not inconsistent with the Supreme Court’s somewhat recent decision in Cullen v.
Pinholster, 131 S. Ct. 1388 (2011), where the Court held that “review under
§ 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits.” 131 S. Ct. at 1398 (emphases added).

                                         -2-
alleged ineffective assistance of counsel in failing to file a notice of appeal. This

is the sole claim before us on appeal.

                                             II

          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

                                            -3-
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.

                                          -4-
      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, filed July 28, 2011), 2 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.” 3 Cf. United States v.

      2
            As we explained in our COA Order, “[s]uch sworn statements
generally constitute competent evidence in a § 2255 action.” COA Order, at *7;
see Ryan v. United States, 657 F.3d 604, 605–06 (7th Cir. 2011); United States v.
Harger, 354 F. App’x 151, 152 (5th Cir. 2009) (per curiam).
      3
             The government makes much of the district court’s inference that Mr.
Lee-Speight’s allegation in his motion was “incredible” in light of the appellate
waiver in his plea agreement. However, given that Mr. Lee-Speight’s waiver
“was not fully exhaustive,” COA Order, at *5 n.2, and the importance of the right
to appeal generally, see, e.g., Rodriguez, 395 U.S. at 329–30 (“[A]n appeal from a
District Court’s judgment of conviction in a criminal case . . . [is] a matter of
right.” (quoting Coppedge, 369 U.S. at 441) (internal quotation marks omitted));
Snitz, 342 F.3d at 1157 (explaining the “basic principle” that “every direct
criminal appeal must be briefed on the merits by counsel and decided accordingly
                                                                        (continued...)

                                           -5-
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 failed to

file an appeal as petitioner had requested where petitioner “had not provided any

credible testimony that he requested and his counsel ignored his request for an

appeal” (citation omitted) (internal quotation marks omitted)).

      We are not persuaded otherwise by the government’s arguments on appeal

that because Mr. Lee-Speight failed to plead that he made his request in a timely

manner, he has failed to allege facts which would entitle him to relief. We are to

construe Mr. Lee-Speight’s pleadings liberally. See Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir. 1991) (“A pro se litigant’s pleadings are to be construed

liberally and held to a less stringent standard than formal pleadings drafted by

lawyers. We believe that this rule means that if the court can reasonably read the

pleadings to state a valid claim on which the [petitioner] could prevail, it should

do so despite the [petitioner’s] . . . unfamiliarity with pleading requirements.”

(citations omitted)). And, while he did fail to allege the date of his request, other

evidence—such as his quick response when he realized an appeal had not been

docketed, see, e.g., COA Order, at *9 (explaining that “[t]he record demonstrates


      3
        (...continued)
by the court unless, after thorough review of all pertinent proceedings, the appeal
is determined initially by counsel and then independently by the court to be
wholly frivolous”), we conclude that it was incorrect to find that this partial
waiver alone made Mr. Lee-Speight’s sworn and unchallenged statement—the
averment that he asked his counsel to docket an appeal—incredible.

                                          -6-
that he attempted to file a pro se appeal roughly one month after judgment was

entered in his criminal case”); see also id. at *9 n.4 (“While it appears that Mr.

Lee-Speight discovered his attorney’s alleged missteps a few weeks too late to

file a timely notice of appeal, we note that, because of the varying conditions of

incarceration, ‘a reasonable prisoner may take . . . [a few] months . . . to suspect

that counsel has dropped the ball.’” (alteration in original) (quoting Ryan, 657

F.3d at 607))—supports an inference that his request was timely. 4 Moreover, just

as it is not possible to tell from his sworn statement that the request was timely, it

is not possible to tell that his request was not timely. Reading Mr. Lee-Speight’s

pro se claims liberally, “the motion and the files and records of the case [do not]

conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b)

(emphasis added).

                                          III

      In short, Mr. Lee-Speight has set forth evidence to show that he may be

entitled to habeas relief and there is nothing before us that shows conclusively

that he is not entitled to such relief. He has “articulated [a] fact[] which, if

proven, would entitle him to relief.” United States v. Weeks, 653 F.3d 1188, 1200

(10th Cir. 2011). We therefore reverse and remand with directions for the



      4
             Indeed, as appointed counsel for Mr. Lee-Speight argues in the reply
brief, Mr. Lee-Speight not only filed a notice of appeal, he did so only sixteen
days after he thought judgment had been entered.

                                          -7-
district court to vacate its denial of Mr. Lee-Speight’s habeas motion and further

develop the factual record as necessary to resolve in the first instance the merits

of his § 2255 motion, pursuant to § 2255(b). 5 Further, as our consideration of this

matter has been greatly aided by appointed counsel, 6 we direct the district court to

appoint new counsel to assist Mr. Lee-Speight in the proceedings before it. See

Pinson v. Berkebile, --- F. App’x ----, 2013 WL 3115736, at *6 (10th Cir. 2013);




      5
             We pause to note here, as we did in our COA Order, that the “district
court retains flexibility to utilize alternative methods to expand the record without
conducting an extensive hearing.” COA Order, at *11 n.5; see, e.g., Machibroda
v. United States, 368 U.S. 487, 495 (1962) (“What has been said is not to imply
that a movant must always be allowed to appear in a district court for a full
hearing if the record does not conclusively and expressly belie his claim, no
matter how vague, conclusory, or palpably incredible his allegations may be. The
language of the statute does not strip the district courts of all discretion to
exercise their common sense. Indeed, the statute itself recognizes that there are
times when allegations of facts outside the record can be fully investigated
without requiring the personal presence of the prisoner.”); Ryan, 657 F.3d at 608
(“[W]e recognize that further factual development need not involve the full
panoply of discovery techniques or even a hearing.”); see also Rule 7(a) of the
Rules Governing Section 2255 Proceedings for U.S. Dist. Cts. (“If the motion is
not dismissed, the judge may direct the parties to expand the record by submitting
additional materials relating to the motion. The judge may require that these
materials be authenticated.”).
      6
            Consistent with our earlier order appointing counsel to represent Mr.
Lee-Speight in this appeal, Ms. Cohen and The Federal Public Defender’s office
are now discharged from the duties of representing Mr. Lee-Speight in this
matter.

                                         -8-
Crawford v. Booker, 156 F.3d 1243, 1998 WL 567963, at *2 (10th Cir. 1998).



                                            Entered for the Court


                                            JEROME A. HOLMES
                                            Circuit Judge




                                      -9-
