                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 26 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-2134
                                                   (D.C. No. CIV-97-587-JC)
    GARY RAY CROWELL,                                      (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before HENRY, BRISCOE,          and MURPHY , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant Gary Ray Crowell seeks a certificate of appealability (COA) in

order to appeal from the district court’s order denying relief in his motion filed

under 28 U.S.C. § 2255. We deny Crowell’s application and dismiss the appeal.


                                           I.

      The facts and procedural background of this case are set forth in the

magistrate judge’s detailed and thorough thirty-four-page report and

recommendation. Thus, we only briefly repeat those facts necessary to resolve

this appeal. Crowell pled guilty in April 1987 to an indictment charging him with

one count of kidnaping in violation of 18 U.S.C. § 1201(a)(1) based upon his

abduction and sexual abuse of a fourteen-year-old victim in Arizona. Crowell

was represented by appointed counsel, Mr. Phillip Gaddy. His guilty plea, made

at the start of his trial, was not based on any plea negotiations with the

government, but rather on his belief that he would not be prosecuted in Arizona if

he received a substantial sentence in federal court. However, the day before

sentencing, Crowell sought to withdraw his plea. He alleged he had recently

received copies of certain discovery documents which he believed bolstered his

chances of an acquittal. These discovery documents had been timely provided by

the government to Gaddy, but Crowell claimed to be unaware of them. Gaddy

sought to have new counsel appointed in case Crowell wished to pursue a claim



                                          -2-
that Gaddy had been ineffective in not providing him copies of these discovery

materials.

      The district court held an evidentiary hearing on these motions at which

Crowell and others testified. The district court denied the motion to appoint new

counsel and the motion to withdraw the plea and sentenced Crowell to life

imprisonment. Gaddy immediately wrote a letter to Crowell recommending that

he file an appeal, and informing him of the appeal deadline and how to have the

court clerk enter a notice of appeal on his behalf. Gaddy told Crowell to contact

him if he wanted any further assistance from Gaddy, though he did not expressly

offer to file an appeal for Crowell. Crowell was in transit to a new prison at the

time, and did not receive Gaddy’s letter until after the appeal deadline had

passed. 1 Crowell did not attempt to contact Gaddy.

      Crowell did not file his § 2255 motion until ten years later, in 1997. He

raised numerous arguments, including a claim that his guilty plea was not

knowing and voluntary and claims that he was denied due process and ineffective

assistance of counsel because he was not informed of his right to appeal and

because Gaddy failed to perfect a direct appeal. After Crowell filed his § 2255


1
       There is some conflict in the record as to when Crowell received the letter,
which was dated June 1, 1987. In his § 2255 motion, Crowell stated that he
arrived at the federal prison on June 10, 1987, and received his mail some days
later. At his § 2255 evidentiary hearing, however, Crowell testified that he did
not receive the letter until the end of July, 1987.

                                         -3-
motion, it was determined that transcripts of Crowell’s 1987 change of plea

hearing and sentencing hearing no longer existed. The district court        sua sponte

determined that Crowell’s § 2255 motion        was barred by Rule 9(a) of the Rules

Governing § 2255 Proceedings and denied the motion. Rule 9(a) “provides the

state with an equitable defense to unjustifiably delayed petitions.”      Hannon v.

Maschner , 845 F.2d 1553, 1555 (10th Cir. 1988).

        On appeal, we reversed the ruling that Crowell’s motion        was barred by

Rule 9(a), holding that it is an affirmative defense that the government waived by

failing to raise it.   United States v. Crowell , No. 98-2064, 1999 WL 285855, **3

(10th Cir. Apr. 21, 1999). We affirmed the dismissal of some of Crowell’s claims

as without merit.      Id. at **4. We concluded, however, that Crowell’s claims

relating to the voluntariness of his guilty plea and his ineffective assistance of

counsel claims could only be resolved by an evidentiary hearing and remanded the

case to the district court for further proceedings.    Id. at **3.

        The magistrate judge held an evidentiary hearing on remand at which

Crowell, Gaddy, and the prosecutor testified. For the first time, the government

asserted a Rule 9(a) defense. The magistrate judge again concluded Crowell’s

motion was barred by Rule 9(a), but also rejected Crowell’s claims on the merits.

The district court adopted the magistrate judge’s report and recommendation and

dismissed the § 2255 motion.


                                              -4-
                                          II.

      To be entitled to a COA, Crowell must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He may make this

showing by demonstrating that the issues he raises are debatable among jurists,

that a court could resolve the issues differently, or that the questions presented

deserve further proceedings.   See Slack v. McDaniel , 529 U.S. 473, 483-84

(2000). We have reviewed Crowell’s request for a COA, his appellate briefs, the

magistrate judge’s report and recommendation, adopted by the district court, the

transcript of the evidentiary hearing held in the district court, and the entire

appellate record and conclude that Crowell has failed to make the required

showing for a COA.    2




2
        While we conclude that the district court’s disposition of the merits of
Crowell’s § 2255 petition is not deserving of further proceedings, we disagree
with its conclusion that the government could raise a Rule 9(a) defense for the
first time on remand. In Crowell’s first appeal, we held that the government
waived that defense by failing to assert it in its response to the § 2255 motion.
Crowell , 1999 WL 285855, at **3. Our ruling that Rule 9(a) had been waived
became the law of the case and was required to be followed by the district court
on remand. See Phelps v. Hamilton , 122 F.3d 1309, 1322 (10th Cir. 1997) (“The
law of the case doctrine provides that when a court decides upon a rule of law,
that decision should continue to govern the same issues in subsequent stages of
the same case.”) (internal quotation omitted);   Rohrbaugh v. Celotex Corp. , 53
F.3d 1181, 1183 (10th Cir. 1995) (“[W]hen a case is appealed and remanded, the
decision of the appellate court establishes the law of the case and ordinarily will
be followed by both the trial court on remand and the appellate court in any
subsequent appeal.”).

                                          -5-
                                               A.

       Crowell claims he was denied due process and effective assistance of

counsel because he was never informed of his right to appeal. The magistrate

judge found, with record support, that Crowell was aware of his right to appeal

based on (1) evidence that the sentencing judge uniformly advised defendants of

their right to appeal using a standardized sentencing memorandum, consistent

with the court’s obligation under Fed. R. Crim. P. 32(a)(2) (1987) to inform a

defendant of his right to appeal;   3
                                        (2) the fact that Crowell had two prior criminal

convictions from which he would have had independent knowledge of a

defendant’s right to appeal, and (3) his determination that Crowell was not

credible when he testified he was unaware he had any right to appeal. Based on

these findings, we agree with the magistrate judge that Crowell was not denied

due process and effective assistance of counsel due to any failure of the court or

his counsel to inform him of his right to appeal.

                                               B.

       We also agree with the magistrate judge that Gaddy did not provide

ineffective assistance by failing to perfect an appeal on Crowell’s behalf. An

ineffective assistance claim based upon counsel’s failure to file a notice of

appeal, like any other ineffective assistance claim, must be judged in accordance


3
       Now set forth at Fed. Crim. R. P. 32(c)(5).

                                              -6-
with the two-pronged test described in    Strickland v. Washington , 466 U.S. 668,

687-88, 694 (1984), which requires the petitioner to show that counsel’s

representation fell below an objective standard of reasonableness and that the

petitioner was prejudiced by counsel’s deficient performance.     Roe v.

Flores-Ortega , 528 U.S. 470, 476-77 (2000). In cases such as this one where the

defendant has not clearly conveyed to counsel whether or not he wishes to pursue

an appeal, the court must first ascertain whether counsel “consulted” with the

defendant regarding a possible appeal by “advising the defendant about the

advantages and disadvantages of taking an appeal, and making a reasonable effort

to discover the defendant’s wishes.”     Id. at 478. If deficient performance is

established, the defendant is then required to establish that there is a reasonable

probability that, but for counsel’s deficient failure to consult with him about an

appeal, he would have timely appealed.      Id. at 484.

      Here, Gaddy informed Crowell by letter of his right to appeal immediately

after Crowell’s sentencing hearing. He recommended that Crowell file an appeal,

informed him of the appeal deadline, and instructed him how to have the court

clerk file a notice of appeal on his behalf. However, he did not consult with

Crowell in person, nor did he make a further attempt to contact Crowell to

ascertain his wishes. Even if we assume for the sake of argument, however, that

Gaddy was deficient in failing to make a reasonable effort to discover Crowell’s


                                           -7-
wishes, we nevertheless agree with the magistrate judge that Crowell failed to

show that this deficiency prejudiced him because he failed to establish that, but

for Gaddy’s performance, he would have timely appealed.

      When Crowell received Gaddy’s letter in June or July 1987, he did nothing

for weeks, even months. He made no attempt to contact Gaddy, nor did he make

any immediate attempt to file a late appeal. Had he taken any action upon receipt

of Gaddy’s letter, he or Gaddy might have been able to file a request to file a late

appeal pursuant to Fed. R. Crim. P. 4(b) (1987), which, as then in effect,

authorized the district court to extend the time to file a notice of appeal based on

a finding of excusable neglect. Crowell’s first attempt to contact the district court

was not until September 1987, when he requested the appointment of counsel. He

again sought the appointment of counsel in October 1987 and, in November 1987,

wrote a letter to the court seeking copies of documents and transcripts. In both

October and November, the district court wrote to Crowell explaining that he

could raise his claims in a § 2255 motion and the court provided him with the

necessary forms and instructions to file such a motion. Yet, Crowell waited ten

years before filing his § 2255 motion. Thus, the magistrate judge correctly

concluded that Crowell failed to demonstrate that, but for Gaddy’s failure to

consult adequately with him, he would have timely appealed.




                                          -8-
                                          C.

      Finally, Crowell contends his guilty plea was not knowing and voluntary

because Gaddy withheld three exculpatory documents, failed to inform him that

Arizona might still pursue charges against him, and incorrectly told him that any

sentence he received in Arizona would run concurrent with his federal sentence.

At the time Crowell pled guilty, he signed an affidavit acknowledging that his

plea was knowing and voluntary. The affidavit clearly indicates Crowell was

aware of the possibility that Arizona would still prosecute him. The magistrate

judge found no evidence to support Crowell’s claim that Gaddy advised him any

Arizona sentence would be concurrent and found, for numerous reasons, that

Crowell’s testimony on this point was not credible. As to the three allegedly

undisclosed documents, we have already determined that discovery material

similar to one document, an interview with the victim’s aunt and uncle, was not

exculpatory or material.   Crowell , 1999 WL 285855 at **4 (ruling on the aunt and

uncle’s statement under    Brady v. Maryland , 373 U.S. 83 (1963)). Crowell never

introduced into the record copies of the remaining two allegedly undisclosed

documents, though it is his burden to establish what the allegedly exculpatory

evidence is. He claims there was a laboratory result allegedly finding no blood,

skin or hair on a piece of rope. We agree with the magistrate judge that such a

report would not be exculpatory because there is no evidence it was the rope used


                                          -9-
to tie the victim. Crowell also claims there was a medical report of the victim

showing that she had no cuts or bruises. We agree with the magistrate judge that

such a report, while somewhat exculpatory, would not necessarily impeach the

victim’s statement that Crowell tied her up and raped her. Considering all the

circumstances, we agree with the magistrate judge that the allegedly withheld

material did not compromise the voluntary and knowing nature of Crowell’s plea.

       In summary, Crowell failed to make “a substantial showing of the denial of

a constitutional right” and, accordingly, he is not entitled to a COA.     See

§ 2253(c)(1)(B). The magistrate judge wrote a lengthy, thorough, and well-

reasoned report and recommendation that was adopted by the district court. We

agree with its analysis and ultimate decision to deny habeas relief.

       We DENY Crowell’s application for a COA and DISMISS this appeal.


                                                         Entered for the Court

                                                         Robert H. Henry
                                                         Circuit Judge




                                            -10-
