                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALS                     August 25, 2008

                                TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                      Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 08-3078
       v.                                                   D. Kan.
 NORMAN SHAW, JR.,                               (D.C. No. 07-CV-02305-CM)

              Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL


Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.



      Norman Shaw pled guilty to federal bank robbery charges and was

sentenced to 165 months imprisonment. Though his plea agreement contained a

waiver of his right to appeal from or collaterally attack his conviction or sentence,

Shaw filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255

arguing, inter alia, his counsel was ineffective for failing to file an appeal. The

district court denied Shaw’s petition and did not rule on his subsequent request

for a certificate of appealability (COA). We therefore deem his request denied.

See 10th Cir. R. 22.1(C). Appearing pro se, Shaw now seeks a COA from this

Court, arguing the district court erred by not holding an evidentiary hearing to
determine whether he had instructed his counsel to file a notice of appeal. 1

                                I. BACKGROUND

      Shaw pled guilty to two counts of a two-count superseding indictment:

entering a bank with intent to rob it and bank robbery, both in violation of 18

U.S.C. § 2113(a). His plea agreement contained a waiver:

      The defendant knowingly and voluntarily waives any right to
      appeal or collaterally attack any matter in connection with his
      prosecution, conviction, and sentence. The defendant is aware that
      18 U.S.C. § 3742 affords a defendant the right to appeal the
      conviction and sentence. By entering into this agreement, he
      knowingly waives any right to appeal a sentence imposed which is
      within the guideline range determined appropriate by the court. He
      also waives any right to challenge his conviction or sentence (in
      the manner in which either was determined) in any collateral
      attack, including, but not limited to, a motion brought under 28
      U.S.C. § 2255 [except as limited by United States v. Cockerham, 237
      F.3d 1179, 1187 (10th Cir. 2001)], as well as any motion brought
      under 18 U.S.C. § 3582(c)(2) and/or Fed. R. Civ. Pro. 60(b). In
      other words, he waives the right to appeal the sentence imposed in
      this case except to the extent, if any, the court departs upwards from
      the applicable guideline range determined by the court. However, if
      the United States exercises its right to appeal the sentence imposed
      as authorized by 18 U.S.C. § 3742(b), he is released from this waiver
      and may appeal his sentence as authorized by 18 U.S.C. § 3742(a).

(R. Vol. I, Doc. 53 at 7 (emphasis added).) The court determined Shaw was a

career offender under USSG §4B1.1 and sentenced him to 165 months

imprisonment on each count, to run concurrently. Shaw did not file a direct

appeal.


      1
      We liberally construe Shaw’s filings because he is proceeding pro se. See
Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998).

                                         -2-
      Almost one year later, Shaw filed a pro se 28 U.S.C. § 2255 motion to

vacate, set aside or correct his sentence alleging: (1) he was wrongly sentenced as

a career offender; (2) he received ineffective assistance of counsel because (a) he

was not given a three-level reduction for acceptance of responsibility, (b) counsel

failed to object to the application of the career offender guideline at sentencing

and failed to appeal, (c) counsel failed to address at sentencing or on appeal other

unspecified guideline enhancements, (d) counsel failed to investigate evidence

that would have proven him actually innocent; and (3) there was insufficient

evidence to prove his guilt on one of the counts. Shaw did not claim he requested

his counsel file a notice of appeal; nor did he claim his counsel failed to consult

with him about pursuing an appeal. 2

      In response to Shaw’s argument that his counsel was ineffective for failing

to file an appeal, the government stated: “[T]he Court correctly applied [the

career offender] enhancement, and the defendant has failed to show what his

counsel could possibly have done in objecting or appealing.” (R. Vol. I, Doc. 62

at 7.) The court denied Shaw’s motion, remarking in a footnote:

      Two of petitioner’s claims involve allegations that counsel failed to
      file an appeal. The Tenth Circuit has held recently in unpublished

      2
        He alleged: “Ineffective counsel failed to appeal defendant’s illegal
sentence, and failed to properly address at sentencing and on direct appeal, any of
the sentencing guideline enhancements [now defaulted] used by the court, based
on the probation department’s presentence report. This ineffectiveness of counsel
caused petitioner to receive an additional 90 months in federal prison . . . .” (R.
Vol. I, Doc. 60 at 4-5.)

                                          -3-
      opinions that allegations that counsel failed to file an appeal fall
      within the scope of plea agreement waivers. See, e.g., United States
      v. Macias, 229 Fed. Appx. 683, 687 (10th Cir. 2007); United States
      v. Davis, 218 Fed. Appx. 782, 784 (10th Cir. 2007). In any event,
      petitioner’s allegations that his counsel failed to file an appeal are
      conclusory and insufficient to state a claim for relief. See Hatch v.
      Okla., 58 F.3d 1447, 1457, 1471 (10th Cir. 1995), overruled on other
      grounds by Daniels v. United States, 254 F.3d 1180, 1188 n.1 (10th
      Cir. 2001).

(R. Vol. I, Doc. 67 at 3 n.1.) The court determined it did not need to conduct an

evidentiary hearing because “[t]he files and records before the court conclusively

show that defendant is not entitled to relief.” (Id. at 6.) Shaw filed a timely

notice of appeal. 3 In his application for a COA with this Court, Shaw claims —

for the first time — that he told his attorney to file an appeal and his attorney told

him he would do so.

                                 II. DISCUSSION

      A COA is a jurisdictional prerequisite to our review of a petition for a writ

of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue

a COA only if a petitioner makes “a substantial showing of the denial of a


      3
         Shaw’s notice of appeal was filed 110 days after entry of the order
denying his § 2255 motion. Had the court entered a separate judgment on the day
it entered the order, Shaw’s notice of appeal would be untimely, as a defendant in
a civil habeas action must appeal a separately entered judgment within 60 days.
See Fed. R. App. P. 4(a)(1)(B). However, where the court does not enter a
separate judgment required under Fed. R. Civ. P. 58(a), the judgment is not
deemed entered until 150 days after the entry of the dispositive order on the
docket. See Fed. R. Civ. P. 58(c)(2)(B); Fed. R. App. P. 4(a)(7)(A)(ii). Thus,
Shaw had 210 days from November 29, 2007, in which to appeal and thus, his
notice of appeal, filed March 19, 2008, was timely.

                                          -4-
constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard, a petitioner

must demonstrate “that reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

“[A] waiver of collateral attack rights brought under § 2255 is generally

enforceable when the waiver is expressly stated in the plea agreement and where

both the plea and the waiver were knowingly and voluntarily made.” United

States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). Shaw cites United

States v. Garrett, 402 F.3d 1262, 1266 (10th Cir. 2005), for the proposition that a

court is required to hold an evidentiary hearing notwithstanding a waiver of

appeal and collateral attack where a petitioner claims in a habeas petition he

requested an appeal be filed and counsel failed to abide by that request. 4

In assessing whether a petitioner is entitled to an evidentiary hearing, our case

law instructs: “[T]he petitioner bears the burden of alleging facts which, if

proved, would entitle him to relief. Moreover, his allegations must be specific

and particularized; conclusory allegations will not suffice to warrant a hearing.”

      4
       In Garrett, we held the defendant was entitled to a delayed appeal
notwithstanding the waiver of appeal and collateral attack contained in his plea
agreement because he specifically requested counsel file a notice of appeal and
counsel failed to do so. 402 F.3d at 1266. The government did not argue the
waiver of collateral attack barred the defendant’s § 2255 motion. See id. at
1266 n.5


                                          -5-
Hatch v. Okla., 58 F.3d 1447, 1457 (10th Cir. 1995) (quotations and citations

omitted). The district court was not required to hold an evidentiary hearing here

because, prior to his filings with this Court, Shaw never claimed his attorney

promised to file a notice of appeal or ignored a specific request to do so. See

United States v. Wales, No. 05-3445, 2006 WL 950655 at *2 (10th Cir. Apr. 13,

2006) (unpublished) (enforcing defendant’s waiver of his right to collateral

review and denying his application for a COA because he “presented no evidence

that he asked his lawyer to file an appeal”). 5 Where, as here, “the case record

conclusively shows the prisoner is entitled to no relief,” a hearing is not required.

United States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988).

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

                                               ENTERED FOR THE COURT


                                               Terrence L. O’Brien
                                               Circuit Judge




      5
       As an unpublished order and judgment, Wales is non-binding, and can
inform our decision only insofar as its reasoning is persuasive. 10th Cir. R.
32.1(A).

                                         -6-
08-3078 United States v. Shaw
J. O’BRIEN, Concurring

      I concur, but write separately to express my belief that Shaw would not be

entitled to an evidentiary hearing even if he had alleged in his district court

filings that he specifically requested his counsel file a notice of appeal. First,

Shaw cannot succeed on his ineffective assistance of counsel claim under

Strickland v. Washington, 466 U.S. 668 (1984), because none of the grounds on

which he seeks to appeal survive his appeal waiver. Second, even if we found

counsel’s performance to be deficient and presumed prejudice under Roe v.

Flores-Ortega, 528 U.S. 470 (2000), Shaw would still not be entitled to an

evidentiary hearing because his post-sentencing ineffective assistance of counsel

claim is within the scope of the collateral attack waiver contained in his plea

agreement.

A.    Ineffective Assistance of Counsel Claim

      In order to succeed on an ineffective assistance of counsel claim, a

petitioner must show: (1) counsel’s performance “fell below an objective standard

of reasonableness;” and (2) counsel’s “deficient performance prejudiced the

defense.” Strickland, 466 U.S. at 687. In Flores-Ortega, the Court remarked it

has “long held that a lawyer who disregards specific instructions from the

defendant to file a notice of appeal acts in a manner that is professionally

unreasonable.” 528 U.S. at 477. Thus, “when counsel’s constitutionally deficient

performance deprives a defendant of an appeal that he otherwise would have
taken, the defendant has made out a successful ineffective assistance of counsel

claim entitling him to an appeal.” Id. at 484. “This is true regardless of whether,

from the limited perspective of collateral review, it appears that the appeal will

not have any merit.” United States v. Garrett, 402 F.3d 1262, 1267 (10th Cir.

2005).

         Many circuits — including this one — have applied the Flores-Ortega

holding to cases in which the defendant’s plea agreement contained a waiver of

appeal, presuming prejudice without considering the merits of the defaulted

appeal, despite the fact there was “no claim . . . that Flores-Ortega waived his

right to appeal as part of a plea agreement.” Flores-Ortega, 528 U.S. at 489 n.1

(Souter, J., concurring in part, dissenting in part). See United States v.

Poindexter, 492 F.3d 263, 273 (4th Cir. 2007); United States v. Tapp, 491 F.3d

263, 265-266 (5th Cir. 2007); Watson v. United States, 493 F.3d 960, 964 (8th

Cir. 2007); Campusano v. United States, 442 F.3d 770, 775-76 (2d Cir. 2006);

Garrett, 402 F.3d at 1266; 1 Gomez-Diaz v. United States, 433 F.3d 788, 791-94

         1
        Garrett has been cited favorably in a number of unpublished decisions.
See United States v. Benoit, No. 06-7084, 2008 WL 1766839, *2 (10th Cir. Apr.
18, 2008) (unpublished) (“Although the waiver in Mr. Benoit’s plea agreement
has significantly limited his appellate rights, Mr. Benoit would still be entitled to
a delayed appeal if he asked his attorney to file an appeal and his attorney ignored
his request.”); United States v. Lauer, 236 Fed. Appx. 462, 465 (10th Cir. 2007)
(unpublished) (vacating the dismissal of defendant’s petition despite appellate and
post-conviction waiver and remanding for a hearing to determine whether
defendant requested counsel file a notice of appeal); United States v. Golden, 255
Fed. Appx. 319, 321 (10th Cir. 2007) (unpublished) (“Our precedent instructs that
[the Flores-Ortega] rule applies even if, as here, the defendant has waived her

                                          -2-
(11th Cir. 2005); United States v. Sandoval-Lopez, 409 F.3d 1193, 1195-99 (9th

Cir. 2004).

      In Nunez v. United States, the Seventh Circuit concluded the Flores-Ortega

presumption of prejudice was not applicable to a defendant whose plea agreement

contained a waiver of appellate rights. 495 F.3d 544, 547 (7th Cir. 2007),

vacated and remanded by, 128 S.Ct. 2990 (2008). 2 The court explained: “Far

from having a ministerial duty to follow his client’s (latest) wishes, a lawyer has

a duty to the judiciary to avoid frivolous litigation—and an appeal in the teeth of

a valid waiver is frivolous.” Id. “If the plea (and thus the waiver) is valid, an

argument that counsel furnished ineffective assistance is among the foreclosed

theories.” Id. at 548.

      I agree. Shaw waived his right to appeal “any matter in connection with his

prosecution, conviction, and sentence.” (R. Vol. I, Doc. 53 at 7.) The plea

agreement waiver contains only two exceptions, neither of which is relevant


appellate rights in a plea agreement.”); United States v. Wales, No. 05-3445, 2006
WL 960655 at *2 (10th Cir. April 13, 2006) (unpublished) (“This Court will not
enforce a waiver of collateral review when a defendant was deprived of the
opportunity for direct appeal because defense counsel rendered ineffective
assistance by ignoring a defendant’s request to perfect an appeal.”).
      2
        The Court vacated and remanded Nunez on the government’s request and
did not consider the merits. See Nunez, 2008 U.S. LEXIS 5056 (“The judgment is
vacated and the case is remanded to the United States Court of Appeals for the
Seventh Circuit for further consideration in light of the position asserted by the
Solicitor General in his brief for the United States filed May 12, 2008.”); Brief
for the United States at 15-16, Nunez v. United States, No. 07-818, 2008 WL
2050805 (May 12, 2008).

                                         -3-
here. 3 Because the issues he seeks to raise on appeal are well within the scope of

his appeal waiver, his counsel’s failure to file a notice of appeal — even if he was

instructed to do so — would not constitute deficient performance and could not

possibly be prejudicial.

      The Court held in Flores-Ortega that prejudice is to be presumed “when

counsel’s constitutionally deficient performance deprives a defendant of an

appeal.” 528 U.S. at 484. Here, it is the waiver, not the allegedly deficient

performance of counsel, that caused the forfeiture of Shaw’s appeal. In

Campusano, the Second Circuit recognized applying the Flores-Ortega

presumption to waiver cases would “bestow on most defendants nothing more

than the opportunity to lose,” but concluded it could not “cut corners when Sixth

Amendment rights are at stake.” 442 F.3d at 777. I am not persuaded the Sixth

Amendment requires courts to give defendants like Shaw the opportunity to lose.

Rather than grant Shaw the meaningless (and, in my view, not Constitutionally

mandated) right to a delayed appeal, which would waste judicial time and

resources, we ought to hold him to his bargained-for plea agreement and with it,

the appeal waiver.

B.    Collateral Attack Waiver

      In this Circuit, “a waiver of collateral attack rights brought under § 2255 is


      3
       Shaw did not waive his right to appeal an upward departure and would not
be bound by the waiver if the government appealed from the sentence.

                                        -4-
generally enforceable where the waiver is expressly stated in the plea agreement

and where both the plea and the waiver were knowingly and voluntarily made.”

Cockerham, 237 F.3d at 1183. In Cockerham, we recognized an exception to this

general rule, holding “a plea agreement waiver of postconviction rights does not

waive the right to bring a § 2255 petition based on ineffective assistance of

counsel claims challenging the validity of the plea or the waiver. Collateral

attacks based on ineffective assistance of counsel claims that are characterized as

falling outside that category are waivable.” 4 Id. at 1187 (emphasis added).

      Shaw’s plea agreement contains an express waiver of collateral attack. It

provides: “[Shaw] also waives any right to challenge his conviction or sentence

(in the manner in which either was determined) in any collateral attack, including,


      4
        Garrett is not to the contrary. In Garrett, we noted “[t]he government has
not argued that [the collateral attack] waiver bars a § 2255 motion based on
counsel’s failure to file a requested appeal” and went on to explain “the plain
language of the waiver does not address the type of claim he has raised.” 402
F.3d at 1266 n.5. By negative implication, Garrett suggests that a collateral
attack waiver that does waive post-plea ineffectiveness claims would present a
different question. See United States v. Macias, 229 Fed. Appx. 683, 687 (10th
Cir. 2007) (unpublished) (distinguishing Garrett and concluding defendant’s
ineffective assistance of counsel claim was barred because it fell within the scope
of the plea agreement waiver and did not relate to the validity of the plea or the
waiver), cert. denied, 128 S.Ct. 249 (2007); United States v. Davis, 218 Fed.
Appx. 782, 783, 784 (10th Cir. 2007) (unpublished) (holding defendant’s claim
that “his attorney was ineffective for failing to file a notice of appeal on two
sentencing issues” was “subject to waiver” because it “d[id] not go to the validity
of the waiver or [ ] plea agreement” and because defendant did not “present[ ]
any other evidence that he entered into the waiver or plea unknowingly or
involuntarily”). To the extent Garrett has been applied in cases where the
government raised the collateral attack waiver, I disagree with that extension.

                                         -5-
but not limited to, a motion brought under 28 U.S.C. § 2255 [except as limited by

United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)] . . . .” (R.

Vol. I, Doc. 53 at 7.) Shaw does not challenge the validity of his plea or the

waiver and does not claim counsel was ineffective in negotiating or explaining the

plea agreement (including the waiver). He only complains (for the first time) that

counsel was ineffective for not filing an appeal he agreed to forgo. Thus, his

waiver is effective and his petition would be barred even if he had properly raised

the issue before the district court.




                                         -6-
