                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                  February 26, 2013
                                 TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                     Clerk of Court



 JAMES EDWARD CLAYTON,

          Petitioner-Appellee,
                                                        No. 11-7000
 v.                                         (D.C. No. 6:06-CV-0014-FHS-KEW)
                                                        (E.D. Okla.)
 JUSTIN JONES, DOC Director,

          Respondent-Appellant.




                          ORDER AND JUDGMENT *

Before BRISCOE, Chief Circuit Judge, SEYMOUR, and EBEL, Circuit Judges.



      Mr. James Clayton, a state prisoner, filed a petition for a writ of habeas

corpus under 28 U.S.C. §2254. After an evidentiary hearing before the magistrate

judge, the district court granted Mr. Clayton a conditional writ, finding that he

had received ineffective assistance of counsel when his attorney ignored his

instructions to file an appeal after his guilty plea. As a remedy, the court ordered

that Mr. Clayton be allowed to withdraw his guilty plea within 120 days. A full

      *
       This order and judgment is not binding precedent, except under the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.
account of the procedural history and factual background is contained in our

previous published order in this case, Clayton v. Jones, 700 F.3d 435 (10th Cir.

2012). We affirmed the determination that Mr. Clayton was entitled to habeas

relief, but we retained jurisdiction and remanded to the district court for an

explanation of the remedy it had ordered. Id. at 444-45.

      The district court has responded. The court stated that upon review of the

record and further reflection, it has concluded the remedy it previously ordered is

incorrect and the proper remedy is an order directing the Oklahoma state courts to

provide Mr. Clayton with an out-of-time appeal. Resp. to the Tenth Circuit Court

of Appeals’ Remand, Jan. 14, 2013, citing Baker v. Kaiser, 929 F.2d 1495, 1500

(10th Cir. 1991) (“[T]he appropriate remedy [when a defendant is denied the right

to appeal because of ineffective assistance of counsel] is to grant his petition for a

writ of habeas corpus unless the . . . state courts provide him with an out of time

appeal within a reasonable time.”).

      As we recognized in our prior order, 700 F.3d at 443, we review the district

court’s determination of the appropriate remedy for abuse of discretion. In light

of the court’s response and the cases cited in our prior opinion, id. at 443-44, we

cannot say the district court abused its discretion in concluding on remand that

the proper remedy in this case is for the state court to provide an out-of-time

appeal to Mr. Clayton within ninety days. We therefore reiterate our conclusion

that the judgment be AFFIRMED and REMAND this matter to the district court

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with instructions to proceed in accord with its January 14, 2013 order. If the state

grants leave to Mr. Clayton to appeal out of time within ninety days from the date

of issuance of our mandate, the district court shall dismiss the underlying

proceeding. If the state fails to do so, the district court shall issue the writ

releasing Mr. Clayton. See Baker, 929 F.2d at 1501.

      The mandate shall issue forthwith.


                                         ENTERED FOR THE COURT


                                         Stephanie K. Seymour
                                         Circuit Judge




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