                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         August 1, 2006
                                   TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                           Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,

 v.                                                        No. 05-7126
                                                        (E.D. Oklahoma)
 K EN N ETH LEE K ELLEY ,                           (D.Ct. No. CIV-05-139-P)

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, 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.

      On September 18, 2003, Kenneth Lee Kelley was charged in an eleven-

count superseding indictment with various drug and firearm offenses. On January




      *
          This order and judgment is not binding precedent except under the doctrines of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.
26, 2004, pursuant to an oral plea agreement, he pled guilty to Counts 1-2 and 4-

11. As part of the plea agreement, the government agreed to dismiss Count 3,

which carried a mandatory twenty-five year consecutive sentence, and Kelley

agreed not to appeal. 1 On April 27, 2004, Kelley was sentenced to 360 months

imprisonment. Kelley alleges that immediately after the district court imposed

sentence, he asked his counsel to file a direct appeal of his sentence. According

to Kelley, although counsel informed him he would file a notice of appeal,

counsel failed to do so. Kelley contends he did not learn of his counsel’s failure

to file a notice of appeal until M arch 25, 2005. Subsequently, Kelley filed a

direct appeal, which was dismissed on jurisdictional grounds.

       On April 1, 2005, Kelley filed a M otion to Vacate, Set Aside or Correct

Sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of trial

counsel based on counsel’s failure to file a notice of appeal. The district court

held an evidentiary hearing but failed to appoint counsel for Kelley. Based on the

evidence presented at the hearing, the court denied Kelley’s § 2255 motion and

judgment was entered accordingly.

       Thereafter, Kelley filed a timely notice of appeal, a motion for certificate

of appealability (COA) and a motion to proceed in form a pauperis (ifp) on appeal.



       1
        It is unclear whether Kelley waived his right to appeal his conviction and
sentence or merely his conviction. Although the agreement between the parties was that
there would be no appeal, at sentencing, the district court advised Kelley of his right to
appeal his sentence.

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On December 5, 2005, the district court granted Kelley’s motion to proceed ifp.

It also granted a CO A based on its failure to appoint counsel for purposes of the

evidentiary hearing. See Rule 8(c) of the Rules Governing Section 2255

Proceedings for the United States D istrict Courts (“If an evidentiary hearing is

warranted, the judge must appoint an attorney to represent a moving party who

qualifies to have counsel appointed under 18 U.S.C. § 3006A.”) (emphasis

added).

      As the district court recognized in granting Kelley a COA, it erred in

failing to appoint counsel for purposes of the evidentiary hearing. Having

determined that an evidentiary hearing was warranted, the district court was

required under Rule 8(c) to appoint counsel if Kelley qualified for such

appointment under 18 U.S.C. § 3006A. See U nited States v. Leopard, 170 F.3d

1013, 1015 (10th Cir. 1999). Section 3006A(a)(2) allows for the appointment of

counsel in § 2255 cases to “any person financially unable to obtain adequate

representation” when the “interests of justice so require.” By granting a COA and

conceding error, the district court apparently believes K elley satisfies this

standard. The government has not argued otherwise. Indeed, it has not filed a

responsive brief.

      W e REV ER SE the denial of Kelley’s § 2255 motion and REM AND to the

district court with directions to appoint counsel and conduct further proceedings




                                          -3-
as warranted.


                Entered by the C ourt:

                Terrence L. O ’Brien
                United States Circuit Judge




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