                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       August 30, 2006
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

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

       Plaintiff-Appellee,

 v.                                                      No. 05-7108
                                                       (E.D. Oklahoma)
 M ICHA EL D A LE C HR ISTIA N,                  (D.Ct. No. CIV-05-121-W H)

       Defendant-Appellant.



          OR DER DENY ING CERTIFICATE O F APPEALABILITY
                   A ND DISM ISSIN G A PPLIC ATIO N


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




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

unanimously that oral argument would not materially assist 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.

      M ichael Dale Christian, a federal prisoner proceeding in form a pauperis

(ifp), filed a pro se motion to vacate, set aside or correct sentence pursuant to 28

U.S.C. § 2255 alleging ineffective assistance of counsel. The district court

appointed counsel and referred the m atter to a magistrate judge for an evidentiary

hearing and report and recommendation. After conducting an evidentiary hearing,
the magistrate recommended Christian’s motion be denied. The district court

agreed.

       Christian then filed, inter alia, a pro se request for a certificate of

appealability (COA) and to proceed ifp on appeal. In the meantime, his appointed

counsel filed a notice of appeal and request to proceed ifp on appeal. Because he

was represented by counsel, the district court denied Christian’s pro se motions.

However, it granted the motion filed by counsel to proceed ifp on appeal.

       Subsequently, Christian, still represented by counsel, and the government

filed briefs with this Court. However, before Christian may appeal the denial of

his § 2255 motion, w e must issue a COA. 1 See 28 U.S.C. § 2253(c)(1)(B); F ED .

R. A PP . P. 22(b)(1). Therefore, we construe Christian’s brief as an application for

a COA. 2 Because we conclude Christian has failed to make “a substantial

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

deny his request for COA and dismiss the application.

                                       I. Background

       On August 1, 2003, Christian was indicted for (1) conspiracy to distribute

methamphetamine and marijuana in violation of 21 U.S.C. § 846 (Count I), (2)


       1
        Christian’s brief erroneously states: “An appeal from a final judgment in a
§ 2255 case is a matter of right.” (Appellant’s Br. at 1.)
       2
        Because the district court never ruled on the COA issue, we deem it denied. See
United States v. Kennedy, 225 F.3d 1187, 1193 n.3 (10th Cir. 2000) (“Under our
Emergency General Order of October 1, 1996, we deem the district court’s failure to issue
a [COA] within thirty days after filing the notice of appeal as a denial of the certificate.”).

                                              -2-
possession of methamphetamine with intent to distribute in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B)(viii) (Count II) and (3) possession of marijuana with intent

to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii) (Count III). The

court appointed M ichael M cGuire to represent him. On January 9, 2004,

Christian pled guilty to Count II. In the plea agreement, he waived his appellate

and post-conviction rights but reserved the right to appeal any upward departure

or enhancement to his sentence.

       Prior to sentencing, the probation department prepared a presentence

investigation report (PSR). Based upon the stipulated drug quantities, 3

Christian’s base offense level was 30. USSG §2D1.1(a)(3), (c)(5). The probation

officer recommended a two-level enhancement for possession of a firearm (USSG

§2D1.1(b)), a three-level upward adjustment for his role in the offense (USSG

§3B1.1(b)) and a three-level downward adjustment for acceptance of

responsibility (USSG §3E1.1), resulting in a total offense level of 32. W ith a

criminal history category of IV, the guideline range of imprisonment was 168 to

210 months. Christian objected to the firearm and role in the offense

enhancements. At sentencing, however, he withdrew these objections in exchange

for the government agreeing to a reduction of the role in the offense adjustment



       3
         In the plea agreement, the parties agreed “that the most readily provable quantity
of drugs involved in the count alleged and as relevant conduct from the overall conspiracy
is [1] pound of methamphetamine and [136] pounds of marijuana.” (Plea Agreement at
12.)

                                            -3-
from three levels to two. The court accepted this stipulation, which resulted in a

new offense level of 31 and a guideline range of 151 to 188 months

imprisonment. The court sentenced Christian to 188 months. Judgment was

entered on M arch 24, 2004. Christian did not file a direct appeal.

      On M arch 18, 2005, Christian filed a pro se motion to vacate, set aside or

correct sentence pursuant to 28 U.S.C. § 2255. He alleged his trial counsel was

ineffective for failing to (1) appeal the firearm enhancement, (2) file a direct

appeal despite being asked to do so, and (3) consult with him about an appeal.

The government responded, arguing Christian’s § 2255 motion should be

summarily dismissed because he waived his right to file a § 2255 motion in the

plea agreement. In the alternative, it asserted Christian’s trial counsel was not

ineffective for failing to file an appeal because all potential appellate issues had

been waived prior to sentencing (i.e., by his guilty plea and the withdrawal of his

objections to the PSR). The district court concluded an evidentiary hearing was

necessary to determine whether Christian requested his attorney to file an appeal.

The court appointed counsel to represent Christian and referred the matter to a

magistrate judge. See Rule 8(b), (c) of the Rules Governing Section 2255

Proceedings for the U nited States District Courts.

      On June 14, 2005, the magistrate judge conducted an evidentiary hearing.

On August 29, 2005, the magistrate issued a report and recommendation,

recommending denial of Christian’s § 2255 motion. As an initial matter, the

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magistrate concluded Christian had not waived his right to bring a § 2255 motion

challenging his counsel’s failure to file a direct appeal. Nevertheless, the

magistrate determined M cGuire was not ineffective for failing to file a direct

appeal because he was never asked to file such appeal. Christian objected to the

report and recommendation, arguing the magistrate erred in finding M cGuire was

never asked to file an appeal. On September 15, 2005, the district court adopted

the magistrate’s recommendation and denied relief. 4

                                     II. Discussion

       A COA is a jurisdictional pre-requisite to our review. M iller-El v.



       4
         The magistrate also construed Christian’s § 2255 motion as alleging counsel was
ineffective for failing to adequately explain (1) the plea agreement, in particular, the
waiver of appeal provision, and (2) the consequences of withdrawing his objections to the
sentencing enhancements on his right to appeal those enhancements. As to the former
claim, the magistrate found it was “flatly contradicted not only by [McGuire’s] testimony,
but also by almost everything else appearing of record, e.g., the transcript of the [change
of plea hearing], wherein both [McGuire] and the USA discussed the waiver of appeal in
[Christian’s presence].” (R. Vol. I, Doc. 9 at 5.) Thus, the magistrate recommended it
be denied. It also recommended the latter claim be denied because (1) it was within the
scope of Christian’s waiver of his right to collaterally attack his sentence and (2) it was
contradicted by McGuire’s testimony at the evidentiary hearing. Christian, who was
represented by counsel, did not object to these recommendations. “This court has
adopted a firm waiver rule under which a party who fails to make a timely objection to
the magistrate judge’s findings and recommendations waives appellate review of both
factual and legal questions.” See Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th
Cir. 2005). “This rule does not apply, however, when (1) a pro se litigant has not been
informed of the time period for objecting and the consequences of failing to object, or
when (2) the interests of justice require review.” Id. (quotations omitted). The second
exception has been equated, at least in cases involving pro se litigants, with plain error
review. Id. at 1122. Neither exception warrants departure from the firm waiver rule in
this case. In any event, we conclude the magistrate properly rejected these claims.
Consequently, to the extent Christian seeks a COA on these issues, we deny it.

                                            -5-
Cockrell, 537 U.S. 322, 336 (2003). W e will issue a CO A only if Christian 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. M cDaniel, 529 U.S. 473, 484 (2000)

(quotations omitted). Insofar as the district court dismissed his § 2255 motion on

procedural grounds, Christian must demonstrate both that “jurists of reason would

find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Id.

          In his COA application, Christian argues the district court clearly erred in

finding he did not request an appeal because this finding is in direct conflict w ith

the evidence. Because he requested an appeal and M cGuire failed to file one,

Christian contends he was denied effective assistance of counsel and is entitled to

relief.

          An ineffective assistance of counsel claim requires a showing that (1)

“counsel’s performance was deficient” and (2) “the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

“[A] defendant who explicitly tells his attorney not to file an appeal plainly

cannot later complain that, by following his instructions, his counsel performed

                                             -6-
deficiently.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). On the other hand,

“a lawyer who disregards specific instructions from the defendant to file a notice

of appeal acts in a manner that is professionally unreasonable.” Id. In such

circumstances, the defendant is entitled to a new appeal, regardless of whether

such appeal would have merit. United States v. Garrett, 402 F.3d 1262, 1265

(10th Cir. 2005).

      Even when a defendant neither instructs counsel to file an appeal nor

requests that an appeal not be taken, counsel may be still be ineffective for failing

to file an appeal if he did not consult w ith the defendant about an appeal, i.e., if

he failed to “advis[e] the defendant about the advantages and disadvantages of

taking an appeal” and “mak[e] a reasonable effort to discover the defendant’s

wishes.” Flores-Ortega, 528 U.S. at 478. “[C]ounsel has a constitutionally

imposed duty to consult with the defendant about an appeal when there is reason

to think either (1) that a rational defendant would want to appeal (for example,

because there are nonfrivolous grounds for appeal), or (2) that this particular

defendant reasonably demonstrated to counsel that he was interested in

appealing.” Id. at 480. In making this determination, relevant factors include

“whether the conviction follows a trial or guilty plea” (“because a guilty plea

reduces the scope of potentially appealable issues and . . . may indicate that the

defendant seeks an end to judicial proceedings”), “whether the defendant received

the sentence bargained for as part of the plea” and “whether the plea expressly

                                           -7-
reserved or waived some or all appeal rights.” Id.

      In this case, the magistrate found neither Christian nor his sister requested

M cGuire to file an appeal. This finding is not clearly erroneous. United States v.

M ora, 293 F.3d 1213, 1216 (10th Cir. 2002) (“In reviewing the denial of a § 2255

m otion, we review for clear error the district court’s factual findings, and we

review legal conclusions de novo.”). At the evidentiary hearing, Christian’s sister

testified Christian called her after his sentencing hearing informing her he wanted

to talk to M cGuire. She called M cGuire informing him Christian wished to speak

with him about his case. She never testified she informed M cGuire that Christian

wished to file an appeal. The remaining testimony was conflicting, with Christian

stating he informed M cGuire he wished to appeal the enhancements to his

sentence and M cGuire denying ever being asked to file an appeal. The magistrate

resolved this conflict against Christian, expressly finding M cG uire to be more

credible. This finding is entitled to deference. See Nat’l Refining Co. v. Wagner,

169 F.2d 43, 45 (10th Cir. 1948) (credibility of witnesses and weight to be given

their testimony are questions for the trial court; a trial judge observes the

witnesses while testifying and is in a better position to judge their credibility than

is this court). It is also supported by objective factors, which the magistrate noted

in his report and recommendation, including (1) Christian’s faulty recollection of

his plea agreement and sentencing (2) his testimony that he did not remember

parts of this sentencing and (3) his admission that some of the information he

                                          -8-
provided under oath at the change of plea hearing was untruthful. Because

Christian never requested an appeal, M cGuire was not ineffective for failing to

file an appeal.

      W ith regard to the duty to consult, there is no evidence M cGuire consulted

with Christian about an appeal. Nevertheless, as the district court found, this

failure to consult was not unreasonable because there was no duty to consult in

this case. Christian’s conviction followed a guilty plea and he received the

bargained for sentence. Although he reserved the right to appeal the

enhancements to his sentence, he effectively waived that reservation by

withdrawing his objections to those enhancements in exchange for a “guaranteed”

lower sentence. These facts demonstrate M cGuire had no reason to believe a

rational defendant would want to appeal and more specifically that Christian was

interested in appealing his sentence. Because M cGuire had no duty to consult

with Christian about an appeal, he was not ineffective for failing to do so.

      W e DENY Christian’s request for a COA and DISM ISS the application.

                                       Entered by the C ourt:

                                       Terrence L. O ’Brien
                                       United States Circuit Judge




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