                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       June 12, 2006
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court


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

          Plaintiff-Appellee,
 v.                                                      No. 05-7127
 RO GER DA LE M AX W ELL,                          (D.C. No. 05-CV -76-P)
                                                     (E. D. Oklahoma)
          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before H ENRY, BRISCO E, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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.

      Petitioner Roger Dale M axwell, a federal prisoner proceeding pro se,

appeals the district court’s denial of his 28 U.S.C. § 2255 petition for habeas



      *
       This order and judgment is not binding precedent, except under the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.
relief. The district court granted M axwell a certificate of appealability based on

the district court’s failure to appoint counsel to represent M axwell during an

evidentiary hearing. For the reasons explained below, we vacate the order

denying M axwell’s § 2255 motion and remand the case with directions to appoint

counsel and conduct further proceedings as w arranted. W e do not, however,

express any opinion as to the ultimate disposition of petitioner’s ineffective

assistance of counsel claim.

                                          I.

      M axwell was indicted on April 23, 2003, and charged with seven felony

counts, including one count of conspiracy to manufacture methamphetamine in

violation of 21 U.S.C. § 846, one count of maintaining an establishment for

manufacturing operations in violation of 21 U.S.C. § 856(a)(1), three counts of

possession with intent to distribute methamphetamine in violation of 21 U.S.C. §

841(a)(1), and two counts of felon in possession of ammunition in violation of 18

U.S.C. § 922(g)(1). On January 26, 2004, M axwell pleaded guilty to one count of

possession with intent to distribute methamphetamine.

      On April 24, 2004, the district court sentenced M axwell to a term of 160

months’ imprisonment followed by 36 months’ supervised release. After the

district court imposed the sentence, M axwell contends he immediately asked his

trial counsel to file an appeal. His counsel, however, failed to do so, and

M axwell became aware of his attorney’s failure to file a direct appeal on

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September 10, 2004. In response, on September 17, 2004, M axwell filed a

M otion for Consideration of Defendant’s Late Notice of Appeal. W e determined,

however, that M axwell’s appeal was untimely and dismissed his appeal.

       On February 18, 2005, M axwell filed a M otion under 28 U.S.C. § 2255 to

Vacate, Set Aside, or Correct Sentence, alleging ineffective assistance of counsel

at the time of his plea, sentencing, and appeal. The district court conducted an

evidentiary hearing on M axwell’s motion on September 9, 2005. M axwell was

present at the hearing and presented evidence. During the hearing, M axwell

informed the court that he had only a sixth grade education and was no match for

the government’s counsel. 1 The district court, however, did not appoint counsel

to represent M axwell. Based on the evidence presented at the hearing, the district

court denied his motion, determining M axwell had not shown his counsel was

ineffective. M axwell filed a notice of appeal in the district court on November

22, 2005. 2




       1
        W e are unable to verify the contents of the evidentiary hearing because a
transcript of the proceedings was not made a part of the record at the district court
or on appeal.
       2
        M axwell’s filing was one day past the sixty-day filing deadline in Fed. R.
App. P. 4(a)(1)(B). M axwell declared, however, in a certificate of service that
the notice was mailed November 13, 2005. Because it appears M axwell complied
with the prisoner mailbox rule, his appeal is deemed timely. Fed. R. App. P.
4(c)(1); United States v. Ceballos-M artinez, 387 F.3d 1140, 1143 (10th Cir.
2004).

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                                         II.

      W hen reviewing a district court’s denial of a § 2255 petition, this court

reviews questions of law de novo and questions of fact for clear error. United

States v. Harms, 371 F.3d 1208, 1210 (10th Cir. 2004).

      By ordering the evidentiary hearing, the district court brought into play the

mandate of Rule 8(c) of the Rules Governing Section 2255 Proceedings for the

United States District Courts. United States v. Leopard, 170 F.3d 1013, 1015

(10th Cir. 1999). Rule 8(c) states: “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.” 3 Rule 8(c) of the Rules Governing

Section 2255 Proceedings for the United States District Courts, 28 U.S.C. foll. §

2255. The appointment of counsel is mandatory if the moving party qualifies

under 18 U .S.C. § 3006A . Leopard, 170 F.3d at 1015 (10th Cir. 1999); see also

Sw azo v. W yoming Dept. of Corrections State Penitentiary W arden, 23 F.3d 332,

333-34 (10th Cir. 1994). M oreover, we have previously recognized that a

violation of R ule 8(c) requires automatic reversal and is not subject to harmless

error review. United States v. Lewis, 21 Fed. Appx. 843, 845 (10th Cir. 2001)




      3
         Rule 8(c) was modified in 2004 in an effort to make it “more easily
understood and to make style and terminology consistent throughout the rules.”
Rule 8(c) of the Rules Governing Section 2255 Proceedings for the United States
District Courts, 28 U.S.C. foll. § 2255. The changes were “intended to be
stylistic” only and resulted in “no substantive change” to Rule 8(c). Id.

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(joining the Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits in holding

harmless error analysis inapplicable to Rule 8(c) violations).

      Section 3006A(a) allows for the appointment of counsel for a litigant

seeking relief under §§ 2241, 2254, or 2255 w hen “the interests of justice so

require” and such person is “financially unable to obtain adequate

representation.” 18 U.S.C. § 3006(A)(a). A defendant who satisfies in forma

pauperis requirements, as the district court held M axwell did, necessarily meets

the requirements of § 3006(A). Lewis, 21 Fed. Appx. at 844, n.1. The

government does not argue on appeal that M axwell would not have qualified for

the appointment of counsel under § 3006A. Rather, the government concedes the

district court erred and that this matter should be reversed and remanded to the

district court for a proper evidentiary hearing. For the aforementioned reasons,

we agree.

      The government, nonetheless, asks us to affirm the district court on the

merits of M axwell’s ineffective assistance of counsel claim on the basis that he

failed to show his counsel was deficient. Essentially, the government asks this

court to assume that no new information would have been presented at the hearing

had counsel been appointed to represent M axwell. This argument is not

compelling. As w e recognized in Lewis, “where a defendant is denied his

statutory right to counsel during a hearing, . . . [o]ne can only speculate on what

the record might have been had counsel been provided.” Id. at 846. Here, the

                                         -5-
district court held the hearing for the purpose of taking evidence on M axwell’s

claim, specifically whether M axwell tim ely advised counsel to file an appeal.

Because M axwell did not have the benefit of counsel at the hearing to assist in the

presentation of evidence, we cannot accurately assess the merits of his claim.

                                         III.

      For the foregoing reasons, the district court’s denial of M axwell’s § 2255

motion is REVERSED and this case is REM ANDED to the district court with

directions to appoint counsel and conduct further proceedings as warranted.

                                                Entered for the Court


                                                M ary Beck Briscoe
                                                Circuit Judge




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