                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 24 2001
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,                           No. 00-3347
 v.                                             (D.C. Nos. 00-CV-3163-GTV
                                                  & 98-CR-20071-03-GTV)
 ERIC L. LEWIS,                                           (D. Kan.)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges.


      This case raises a single issue: whether a district court’s failure at a section

2255 evidentiary hearing to provide counsel to a defendant entitled to have

counsel under Rule 8(c) requires reversal. We conclude that it does.

I.    Background

      A federal grand jury indicted Eric L. Lewis, the defendant-appellant, on

October 27, 1998, for conspiracy to possess with intent to distribute

approximately one pound of a mixture or substance containing a detectable

amount of cocaine, in violation of 21 U.S.C. § 841, and for conspiracy to possess


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

unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G).
with intent to distribute one-half gallon of a mixture or substance containing

phencyclidine (“PCP”), in violation of 21 U.S.C. § 846. In addition to Mr. Lewis,

the grand jury indicted several other individuals, including Antonette A. Huckaby.

      After the district court denied his motion to suppress the evidence against

him, Lewis pled guilty on February 6, 1999, to being an accessory after the fact.

On May 5, 1999, the district court sentenced Mr. Lewis to 87 months in prison.

On May 5, 2000, exactly one year after being sentenced, Mr. Lewis filed a motion

with the district court seeking to have his sentence set aside, vacated, or

corrected. The district court granted Mr. Lewis’s motion to proceed in forma

pauperis in that proceeding.

      Mr. Lewis’s motion advanced several grounds for setting aside his

sentence, including that he received ineffective assistance of counsel during his

trial because his attorney, Mr. Carl Cornwell, failed to inform him that he was

professionally associated with Ms. Huckaby’s attorney, Mr. Brian Johnson. The

only evidence Mr. Lewis presented in support of this claim was a March 9, 2000,

docket sheet that listed the same address for Mr. Cornwell and Mr. Johnson.

      On August 28, 2000, the district court held an evidentiary hearing and

concluded that all of Mr. Lewis’s claims were without merit. (Doc. 214; August

28, 2000 Tr. at 23-25.) At the onset of the hearing, Mr. Lewis requested that the

district court appoint counsel to represent him, which the court denied. (August


                                         -2-
28, 2000 Tr. at 4.) The district court then explained to Mr. Lewis that, in light of

the docket sheet, he had presented a prima facie case of ineffective assistance of

counsel and that the government would bear the burden of rebutting this

presumption.

      The government then called Mr. Cornwell to the stand, and he testified that

between June 1999 and May 2000 he and Mr. Johnson were, in fact, members of

the same firm. (Id. at 7-8.) Mr. Cornwell testified, however, that he did not

become professionally associated with Mr. Johnson until after Mr. Lewis was

sentenced in May 1999. (Id. at 8-9.) Following direct examination, the district

court clarified that although Mr. Johnson and Mr. Cornwell represented co-

defendants in the same case, they were not co-counsel; the court then offered Mr.

Lewis the opportunity to cross-exam his former attorney. (Id. at 9-11.) Mr.

Lewis declined the invitation. (Id. at 11.)

      Following Mr. Cornwell’s testimony, the district court gave Mr. Lewis the

opportunity to present his other arguments to the court, complimented Mr. Lewis

on his well-written brief, and encouraged Mr. Lewis to relax when he expressed

nervousness about presenting his arguments before the district court. The district

court then denied Mr. Lewis’s 2255 motion. As to Mr. Lewis’s ineffective

assistance claim, the court explained that Mr. Cornwell’s testimony demonstrated

that he and Mr. Johnson were not professionally associated while Mr. Cornwell


                                         -3-
represented Mr. Lewis. Consequently, it concluded that Mr. Cornwell did not

have conflict of interest while representing Mr. Lewis. (Id. at 23.)

      On October 2, 2001, Mr. Lewis filed a Notice of Appeal with this Court.

On appeal, Mr. Lewis argued that the district court violated his statutory rights

under Rule 8(c) of the Rules governing section 2255 proceedings. Rule 8(c)

unequivocally states,“If an evidentiary hearing is required, the judge shall appoint

counsel for a movant who qualifies for the appointment of counsel under 18

U.S.C. § 3006A(g).” Because prior decisions by this Court had held that 2254’s

Rule 8(c), which is identical to section 2255’s Rule 8(c), requires appointment of

counsel when an evidentiary hearing is held for a defendant who qualifies for

counsel under section 3006A(g), see United States v. Swazo, 23 F.3d 332 (10th

Cir. 1994), we concluded that “it appears Lewis qualified for mandatory

appointment under Rule 8(c).” 1 We further concluded that the failure to appoint

counsel “hindered . . . [Mr. Lewis’s] attempt to make” his Sixth Amendment

ineffective assistance of counsel claim. (Id., citing 28 U.S.C. § 2253(c)(2).)

Consequently, while we found Mr. Lewis had not made a “substantial showing of

a denial of a constitutional right” on the other grounds asserted before the district

court, we granted a Certificate of Appealability on Mr. Lewis’s ineffective


      1
       In our August 10 order, we noted that a defendant who satisfies in forma
pauperis requirements, as the district court held Mr. Lewis did, necessarily meets
3006A’s requirements. (August 10 order at 3.)

                                         -4-
assistance of counsel claim. (Id. at 4.) In addition, we ordered the United States

Attorney for the District of Kansas to submit a brief within thirty days addressing

one question:

      What is the appropriate remedy for the district court’s apparent violation of
      Rule 8(c) in this case?

(Id. at 4.) We now address that issue.

II.   Analysis

      As the government forthrightly concedes in its brief, every circuit to date

that has addressed the issue raised in our August 10, 2001 order has held that a

Rule 8(c) violation requires automatic reversal and is not eligible for harmless

error review. See Green v. United States, 262 F.3d 715, 718 (8th Cir. 2001);

Shepherd v. United States, 253 F.3d 585, 588 (11th Cir. 2001); United States v.

Iasiello, 166 F.3d 212, 213 (1999); United States v. Vasquez, 7 F.3d 81, 85 (5th

Cir. 1993); Rauter v. United States, 871 F.2d 693, 697 & n.7 (7th Cir. 1989) (all

holding harmless error analysis inapplicable to the Rule 8(c) violations). See also

United States v. Duarte-Higareda, 68 F.3d 369 (9th Cir. 1995) (noting that all

circuits hold that Rule 8(c) mandates the appointment of counsel and summarily

reversing a district court that did not appoint counsel).

      Notwithstanding the weight of authority against it, the government urges

this Court to “pause before joining the stampede rejecting harmless error analysis

and momentarily consider the wisdom of such an approach.” (Aple. Br. at 10.)

                                         -5-
The government advances several arguments in support of its position. First, it

points out that “there is no constitutional right to appointment of counsel at an

evidentiary hearing on a 2255 petition; instead it is mandated by statute.” (Id. at

12.) Second, it notes that many constitutional errors are evaluated under the

harmless error standard and do not result in automatic reversal. Finally, it

contends that “structural” errors, which warrant automatic reversal, “emanate

from the [C]onstitution,” not statutes. (Id. at 13.) In essence, the government

asserts that our sister circuits erred by “rais[ing] a statutory right to the

appointment of counsel at a post-conviction evidentiary hearing above many

constitutional rights which when violated do not require automatic reversal.”

(Id.)

        Although we appreciate the government’s argument, we reject it and hold

that a violation of Rule 8(c) requires automatic reversal. We reach this

conclusion for several reasons. First, precedent from this Circuit has already

suggested that a Rule 8(c) violation under section 2255 requires automatic

reversal. As touched on above, this Court held in Swazo that the failure to

provide an attorney at an evidentiary hearing held under section 2254 requires

reversal. 23 F.3d at 334 (“Because the district court did not appoint counsel when

it required a hearing, we must remand the case for further proceedings.”)

(emphasis added). In reaching this conclusion, this Court expressly noted that the


                                           -6-
“rules governing § 2255 cases contain a similar [right to counsel] requirement”

and invoked precedent from other circuits which hold that a Rule 8(c) violation

under section 2255 is not subject to harmless error analysis and requires

automatic reversal. 2 Id. at 334, citing Vasquez, 7 F.3d at 84 and Rauter, 871 F.2d

at 695. Although we never expressly stated that a harmless error analysis was

inapplicable, our summary reversal and holding that the appointment of counsel

was required, as well as the precedent we relied upon, suggested such a result. 23

F.3d at 334.

      Even if we are not bound by our decision in Swazo, the government has not

convinced us that we should break from the position taken by all the circuits that

have considered this issue. Although the government is correct in noting that

cases where automatic reversal is required (i.e., cases involving “structural error”)

usually involve a constitutional violation, see Neder v. United States, 527 U.S. 1,

8 (1999); United States v. Stevens, 223 F.3d 239, 244 (3d Cir. 2000) (noting that

“generally” structural errors are constitutional in nature), it is incorrect in

suggesting that only constitutional errors warrant automatic reversal. United

States v. Annigoni, 96 F.3d 1132, 1144 (9th Cir. 1996) (en banc) (noting that

“numerous errors are subject to automatic reversal even though they do not

violate constitutional rights”). As the Supreme Court explained in Arizona v.


      2
          Section 2254’s Rule 8(c) is identical to section 2255’s.

                                           -7-
Fulminante, 449 U.S. 279 (1991), a structural error is an error that affects “the

framework within which the trial proceeds, rather than simply an error in the trial

process itself.” Id. at 310. Among the rights deemed “structural” by the Supreme

Court is the complete denial of counsel during a criminal trial, see Gideon v.

Wainwright, 372 U.S. 335 (1963), which so affects “[t]he entire conduct of the

trial from beginning to end.” Fulminante, 499 U.S. at 309. Structural errors exist

“where there are . . . ‘defects in the constitution of the trial mechanism, which

defy analysis by ‘harmless error’ standards.’” United States v. Noushfar, 78 F.3d

1442, 1445, quoting Fulminante, 499 U.S. at 309 (emphasis added).

      As our sister circuits have explained, evaluating a Rule 8(c) violation defies

traditional harmless-error review. The Supreme Court explained in Fulminante,

for example, that the “common thread connecting” harmless-error cases was that

the error “could be quantitatively assessed in the context of other evidence

presented in order to determine whether its admission was harmless beyond a

reasonable doubt.” 499 U.S. at 307-08. Yet where a defendant is denied his

statutory right to counsel during a hearing, it is nearly impossible for an appellate

court to determine whether this error was harmless. As the Fifth Circuit

explained, “[I]t is difficult to accurately assess whether it was harmless error to

deny counsel on the basis of a record developed at an evidentiary hearing

conducted in the absence of that counsel. One can only speculate on what the


                                         -8-
record might have been had counsel been provided.” Vasquez, 7 F.3d at 85; see

also Green, 262 F.3d at 718 (invoking Vasquez and rejecting the idea that the

government can show the lack of counsel was “harmless by relying upon

testimony from the very hearing at which [the defendant] was unrepresented”);

Iasiello, 166 F.3d at 214 n.4 (same). 3

III.   Conclusion

       In light of precedent from this Court and other circuits, the district court’s

denial of counsel to Mr. Lewis is REVERSED and this case is REMANDED to

the district court for a proper evidentiary hearing.

                                          ENTERED FOR THE COURT



                                          David M. Ebel
                                          Circuit Judge




       3
        The facts in this case demonstrate the point articulated by our sister
circuits. On appeal, the government contends that the “absence of counsel had
absolutely no impact on the district court’s decision denying the motion to vacate,
set aside, or correct sentence.” (Aple. Br. at 13.) Essentially, the government
asks this Court to assume that no new information would have been revealed at
the hearing had appointed counsel, as opposed to Mr. Lewis, been given the
opportunity to cross-examine Mr. Lewis’s former attorney. The government’s
argument, however, completely ignores the fact that Mr. Lewis, who described
himself as nervous during the proceeding, expressly declined his right to cross-
examine Mr. Cornwell. (August 28, 2000 Tr. at 10-11.) Perhaps as a result of
this, we know very little about the relationship between Mr. Cornwell and Mr.
Johnson prior to June 1999.

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