                                                                                      FILED
                                                                          United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                              Tenth Circuit

                                   TENTH CIRCUIT                                  May 29, 2013

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee.
                                                              No. 12-1398
v.                                                (D.C. No. 1:10-CR-00311-DME-1 and
                                                         1:11-CV-01536-DME)
LESTER EUGENE FOWLER,                                          (D. Colo.)

              Defendant-Appellant.




                               ORDER DENYING
                        CERTIFICATE OF APPEALABILITY


Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges.


       Lester Eugene Fowler, a federal prisoner proceeding in forma pauperis, wants to

appeal from the denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his

sentence. His petition is based upon alleged ineffectiveness of trial counsel. Principally,

he claims counsel failed to file an appeal as he requested. After a hearing the district

judge, crediting the testimony of trial counsel over that of Fowler, found the evidence

insufficient to support Fowler’s claim to have requested an appeal and denied the motion.

No request for a Certificate of Appealability (COA) was made to the district judge.

Instead, Fowler’s appointed counsel filed a notice of appeal with the district court and an
Anders brief with this Court, which we deem an application for a COA.1 See 28 U.S.C. §

2253(c)(1)(B); Fed. R. App. P. 22(b)(1) & (2). Because Fowler has not “made a

substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we

deny a COA.

       Under a plea agreement, Fowler pled guilty to one count of bank robbery in

violation of 18 U.S.C. § 2113(a) and the government agreed to drop four other charges.

The plea agreement contemplated a recommended guideline sentence of 51-63 months

imprisonment, but explicitly stated the computation was tentative and could change upon

subsequent information. The pre-sentence investigation uncovered an additional

conviction for misdemeanor shoplifting, which increased Fowler’s recommended

sentence to 63-78 months imprisonment. He was sentenced to 70 months imprisonment.

No direct appeal was taken.

       Fowler, proceeding pro se, filed a § 2255 motion raising two claims of ineffective

of assistance of counsel. He claims his trial attorney was ineffective for failing to

challenge the consideration of the additional conviction because he was not represented

by counsel when he pled guilty. He also claims his counsel ignored his request to file an

appeal on this issue.




       1
          “A request [for a COA] addressed to the court of appeals may be considered by
a circuit judge or judges, as the court prescribes. If no express request for a certificate is
filed, the notice of appeal constitutes a request addressed to the judges of the court of
appeals.” Fed. R. App. P. 22(b)(2).



                                             -2-
       The district judge determined Fowler’s unrepresented conviction could be

considered for sentencing purposes. See United States v. Jackson, 493 F.3d 1179, 1187

(10th Cir. 2007) (when the right to counsel was not afforded in a misdemeanor state

conviction, the district court must disregard any jail sentence, but is “free to consider the

conviction itself and accompanying fine in assessing an appropriately tailored sentence”

in a subsequent federal conviction). Counsel was not ineffective for failing to object.

       However, the judge appointed counsel for Fowler and held an evidentiary hearing

to determine whether Fowler had requested an appeal, as he swore in his affidavit, or

whether he specifically said he did not want to appeal, as his trial attorney averred.2 The

judge found the testimony of trial counsel to be credible and concluded Fowler’s

evidence failed to prove he requested an appeal.

       Fowler’s appointed § 2255 counsel filed an Anders brief.3 Although twice given

notice and an opportunity to respond to the Anders brief, Fowler did not. The

government did not file a brief.



       2
         An ineffective assistance of counsel claim based on the failure to file a requested
appeal is governed by the Supreme Court’s decision in Roe v. Flores-Ortega, 528 U.S.
470 (2000). “[A] lawyer who fails to follow a defendant’s express instructions to file a
notice of appeal acts in a manner that is professionally unreasonable.” United States v.
Garrett, 402 F.3d 1262, 1265 (10th Cir. 2005) (citing Roe, 528 U.S. at 477-78). “And, if
counsel does not ‘file a requested appeal, a defendant is entitled to [a new] appeal without
a showing that his appeal likely would have had merit.’” Id. (quoting Roe, 528 U.S. at
477).
       3
        In Anders, the Supreme Court held that if appointed counsel “finds his case to be
wholly frivolous, after a conscientious examination of it, he should so advise the court
and request permission to withdraw.” Anders v. California, 386 U.S. 738, 744 (1967).
Counsel must submit to the court a brief “referring to anything in the record that might
arguably support the appeal.” Id. When counsel submits an Anders brief accompanied

                                             -3-
       A COA is a jurisdictional pre-requisite to our review. Miller–El v. Cockrell, 537

U.S. 322, 336 (2003). One may issue only if Fowler makes a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, he must

establish that “reasonable jurists could debate whether . . . the petition should have been

resolved [by the district court] 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) (quotation marks omitted). We review the district judge’s factual

findings for clear error and its legal conclusions de novo. English v. Cody, 241 F.3d

1279, 1282 (10th Cir. 2001).

       As required by Anders, we have conducted a full examination of the record. See

Anders, 386 U.S. at 744. It fully supports the judge’s factual findings and legal

conclusions. As the propriety of the decision is not reasonably debatable, a COA may

not issue. Slack, 529 U.S. at 484.

       We DENY a COA and DISMISS the application.

                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




by a motion to withdraw, we “conduct a full examination of the record to determine
whether defendant’s claims are wholly frivolous.” United States v. Calderon, 428 F.3d
928, 930 (10th Cir. 2005). If we concur in counsel’s evaluation of the case, we may grant
the request to withdraw and dismiss the appeal. Anders, 386 U.S. at 744.




                                            -4-
