                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       July 25, 2007
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court


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

              Respondent-Appellee,
                                                       No. 06-1071
 v.                                                (District of Colorado)
                                              (D.C. Nos. 99-CR-317-RPM and
 AB EL SAENZ,                                        03-CV-980-RPM )

              Petitioner-A ppellant.



                           OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Abel Saenz, a federal prisoner proceeding pro se, appeals the district

court’s order denying his habeas corpus petition under 28 U.S.C. § 2255.

Because we find that the district court abused its discretion in denying M r. Saenz

an evidentiary hearing, we reverse and remand.




      *
         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). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                 BACKGROUND

      M r. Saenz pled guilty to conspiracy to distribute or possess with intent to

distribute 500 or more grams of cocaine. The plea agreement indicated that,

under a tentative computation of M r. Saenz’s criminal history, his Guidelines

sentence would be between 46 and 115 months incarceration, and that the career

criminal offender adjustment did not apply. See U.S. Sentencing Guidelines

M anual § 4B1.1 (2002). The agreement specified, however, that it was not

conditioned on a particular criminal history category and that the U.S. Probation

Office would further investigate this issue. Upon completion of its investigation,

the Probation Office discovered an additional felony drug conviction, which

triggered the career-offender enhancement and qualified M r. Saenz for a

sentencing range of 188 to 235 months incarceration.

      After a series of hearings and continuances, during which M r. Saenz

requested and received new counsel, M r. Saenz moved to withdraw his guilty

plea. The district court denied the motion and sentenced M r. Saenz to 159

months imprisonment, a term that included a downward departure for substantial

assistance.

      On direct appeal, this Court affirmed the denial of M r. Saenz’s request to

withdraw his plea. See United States v. Saenz, 10 F. App’x. 701, 707–08 (10th

Cir. M ay 8, 2001) (unpublished). M r. Saenz then filed a motion under 28 U.S.C.

§ 2255 to vacate his sentence. He alleged that his guilty plea was involuntary,

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that his attorney was ineffective, and that a prior state conviction that factored

into his criminal history score should be set aside. The district court denied the

motion on procedural grounds, finding that M r. Saenz merely repeated claims he

had already raised on direct appeal. See United States v. Warner, 23 F.3d 287,

291 (10th Cir. 1994).

      M r. Saenz appealed from the district court’s order. This Court affirmed the

dismissal of M r. Saenz’s challenges to the state convictions and his claims “to the

extent that they rely on allegations of misleading statements and ineffective

assistance of counsel related to the length of Saenz’s sentence upon entry of the

guilty plea.” United States v. Saenz, 97 F. App’x 836, 840 (10th Cir. M ay 12,

2004) (unpublished). The Court remanded for reconsideration of his claims to the

extent they raised issues that were not dealt with on direct appeal— namely, that

M r. Saenz’s difficulty with the English language prevented his understanding of

the proceedings against him, and that his counsel was constitutionally ineffective

in ways unrelated to the length of sentence. Id. at 839. W e directed the district

court to allow “further development of the record” and to make a “determination

on the merits” of M r. Saenz’s claims. Id. at 840.

      On remand, the district court entered an order directing M r. Saenz to file all

exhibits, affidavits, and other factual support for his claims by September 20,

2004. On August 30, 2004, M r. Saenz filed a motion for an emergency restraining

order, asserting that he could not comply with the court’s order because he had

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been denied access to his records. M r. Saenz also filed a motion for extension of

time to comply. On September 7, 2004, he filed a motion for appointment of

counsel and a motion for leave to conduct discovery. On September 21, 2004, he

filed a memorandum of law that set out additional facts and points of law to

support his claim of ineffective assistance of counsel. On October 4, 2004, the

court appointed counsel to represent M r. Saenz.

      On August 5, 2005, M r. Saenz submitted a letter to the district court

expressing dissatisfaction with his appointed counsel. On August 24, 2005, M r.

Saenz’s counsel filed a motion for an evidentiary hearing, which the court

scheduled for November 8, 2005. On that date, M r. Saenz was brought to the

court to testify. At the hearing, he stated that he had not had enough time to

consult with his counsel, that he disagreed with counsel on how best to proceed,

and that he did not have in his possession necessary papers because he had sent

them to his family. Upon M r. Saenz’s insistence, the court ordered a continuance.

In its order, the court stated that “the hearing is continued and will be rescheduled

for a teleconference hearing when arrangements can be made and the C ourt’s

calendar permits.” Appellant’s App. Ex. J. at 2. 1




      1
       The order also explained that “[t]he Court informed M r. Saenz that he had
been brought to the court for the purpose of an evidentiary hearing and that if a
continuance is to be granted, the hearing would then be conducted by video
conference and he would not be returned to the court.” Id. at 1–2.

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      The district court later decided, however, not to conduct the hearing.

Instead, on January 26, 2006, the court issued an order denying M r. Saenz’s

remanded § 2255 claims. The court explained that M r. Saenz’s protestations at

the November 8, 2005, hearing had “frustrated the effort to comply with the

M andate to determine whether there is any basis for relief from the judgment and

sentence,” and that “[r]ather than again scheduling a hearing,” the court had

decided to review all “papers that have been filed in this matter . . . to determine

whether Abel Saenz has set forth any factual basis to support the generalized

contentions he has made that he did not have effective assistance of counsel.” R.

Vol. I, Doc. 239, at 3. The court concluded that he had not. First, the court

found that M r. Saenz did not claim factual innocence. Instead, “[a]ll of his

contentions relate to the fact that because of his prior record of criminal

convictions, his initially expected sentence . . . was not an option . . . .” Id.

Second, the court found that the allegations concerning attorney conflict of

interest all related to effective assistance at trial, and since a different attorney

represented M r. Saenz at sentencing, these concerns were “irrelevant.” Id. Third,

the district court found that this Court had previously affirmed M r. Saenz’s

sentence and “denied his contentions that the plea was not knowing and

voluntary.” Id. at 4. Last, the court noted that “[d]espite having had ample

opportunity to submit support for these vague claims of ineffective assistance of

counsel and despite the full opportunity to proceed with the evidentiary hearing,

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M r. Saenz simply has refused to proceed in this matter w ith providing any support

for his claims.” Id.

      M r. Saenz sought from this Court a certificate of appealability (“COA”),

see 28 U.S.C. § 2253(c)(1)(B), arguing that the district court’s failure to

reschedule the evidentiary hearing denied him the ability to present evidence on

the remanded claims. W e granted the COA and directed the government to file an

answer brief. The government complied, and M r. Saenz has submitted two filings

in response to the government’s brief.

                                   D ISC USSIO N

      M r. Saenz contends that the district court abused its discretion in refusing

to hold the continued evidentiary hearing and that it wrongly decided the merits

of his constitutional claims. Because we find that the district court abused its

discretion in denying the evidentiary hearing, we need not reach the m erits of M r.

Saenz’s claims.

      W hen a prisoner files a petition under § 2255, “[u]nless the motion and the

files and records of the case conclusively show that the prisoner is entitled to no

relief,” the district court “shall . . . grant a prompt hearing thereon.” 28 U.S.C. §

2255. W hen a district court refuses to grant an evidentiary hearing and denies a §

2255 petition, our review proceeds in two steps. First we ask “whether the

petitioner’s allegations, if proved, would entitle him to relief.” United States v.

Barboa, 777 F.2d 1420, 1422 (10th Cir. 1985). If so, we determine whether the

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denial of the evidentiary hearing constituted an abuse of discretion. Id.; United

States v. Nichols, 169 F.3d 1255, 1263 (10th Cir. 1999); see Schiro v. Landrigan,

127 S. Ct. 1933, 1939-40 (2007) (reaffirming abuse of discretion standard for

review of the district court’s decision not to grant an evidentiary hearing).

      M r. Saenz alleges that he entered into an involuntary guilty plea as a result

of (1) his inability to understand the English language, (2) ineffective assistance

of counsel due to incorrect guidance on the reversibility of the plea agreement,

(3) ineffective assistance of counsel due to failure to investigate, and (4)

ineffective assistance of counsel due to conflict of interest. Although his

allegations remain vague, if M r. Saenz could establish facts showing that his plea

was involuntary for one of the reasons listed above, he would indeed be entitled

to relief. See Cervantes v. Cox, 350 F.2d 855, 855 (10th Cir. 1965) (“[W]e have

no doubt that under extreme circumstances the inability of an accused to

comm unicate with his counsel may deny to him the right to effective

representation and actually result in the entry of a plea without understanding . . .

.”) 2 ; Hill v. Lockhart, 474 U.S. 52, 56 (1985) (“W here . . . a defendant is

represented by counsel during the plea process and enters his plea upon the advice



      2
        The government argues that this Court’s finding on direct appeal that M r.
Saenz “read and understood” his plea agreement bars his claim that he had trouble
communicating with counsel. See Saenz, 10 F. App’x at 708. Given that our
order of M ay 12, 2004, characterized this claim as one that had not been raised on
direct appeal, we are not free to conclude that the panel on direct appeal passed
on this issue.

                                           -7-
of counsel, the voluntariness of the plea depends on whether counsel’s advice

‘was w ithin the range of competence demanded of attorneys in criminal cases.’”

(quoting M cM ann v. Richardson, 397 U.S. 759, 771 (1970)); id. at 59 (noting that

a defendant who pleaded guilty could “allege[] . . . a failure to investigate or

discover potentially exculpatory evidence”); Ham mon v. Ward, 466 F.3d 919,

929–30 & n.11 (10th Cir. 2006) (noting that active representation of conflicting

interests constitutes a denial of the right to effective assistance of counsel).

      W e turn, then, to the question of whether the district court abused its

discretion in denying M r. Saenz an evidentiary hearing. The answer turns on

whether “the motion and the files and records of the case conclusively show that

the prisoner is entitled to no relief.” 28 U.S.C. § 2255. The district court did not

make such a finding in dismissing this case on the m erits. Instead, the court

noted that “the inability to proceed with [the evidentiary] hearing because of the

defendant’s insistence upon a continuance has frustrated the effort to comply with

the M andate to determine whether there is any basis for relief from the judgment

and sentence.” R. Doc. 239 at 3.

      The district court’s frustration with M r. Saenz is understandable. In our

remand order of M ay 12, 2004, we called for “further development of the record

and a determination on the merits” of M r. Saenz’s constitutional claims. 97 F.

App’x at 840. The district court went to pains to give M r. Saenz the opportunity

to develop the record. Initially, the court afforded him several months to submit

                                          -8-
factual support for his claim. After M r. Saenz protested that prison officials were

inhibiting his ability to comply with that deadline, the court appointed counsel to

represent him and scheduled an evidentiary hearing. That hearing began on

November 8, 2005. From the time of remand, then, M r. Saenz had almost

eighteen months to put his case before the district court, both through submissions

to the court and through live testimony at an evidentiary hearing with the

assistance of appointed counsel. Yet when M r. Saenz finally appeared before the

court, he was still not prepared to present his case. He no longer alleged that

prison officials were the cause of his unpreparedness. Instead, he claimed that (1)

he had insufficient time to consult with his counsel; (2) he disagreed with his

counsel about his intended testimony; and, (3) he did not have relevant paperw ork

with him because he had sent it to his family in advance of the hearing (even

though, by his own admission, his family was present at the hearing and could

have brought the evidence). See Appellant’s Br. 7; Appellee’s Br., Attach. 3, at

3–5.

       In light of all this, it would not have constituted an abuse of discretion for

the court to have denied a continuance on November 8. The court could have

taken whatever evidence M r. Saenz w as prepared to present and decided the case

based on that record. Instead of proceeding with the hearing, however, the court

responded to M r. Saenz’s protests by granting a continuance and agreeing to

proceed via videoconference at a later date. At this point, M r. Saenz had no

                                          -9-
reason to believe he faced a now-or-never scenario— the court promised him a

further opportunity to present witness testimony. In our prior order, we stated

that “[n]one of the[] issues [M r. Saenz raises] could have been resolved upon the

record compiled on direct appeal.” Saenz, 97 F. App’x at 839. Because the state

of the record remains virtually unchanged since the time of that order, we still

cannot conclude that “the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255.

      Accordingly, we Reverse the order of the district court and Remand with

instructions to grant M r. Saenz one more opportunity to present his evidence at an

evidentiary hearing, even if by video conference. For his part, M r. Saenz should

be prepared to present his case. If he is not, the district court will be justified in

deciding the merits of his claims based on whatever record exists at that point.

W e reiterate that M r. Saenz is limited to the issues identified in this Court’s order

and judgment of M ay 12, 2004— namely, that M r. Saenz’s difficulty with the

English language prevented his understanding of the proceedings against him, and

that his counsel was constitutionally ineffective in ways unrelated to the length of

sentence. All other pending motions are denied.

                                                 Entered for the Court,

                                                 M ichael W . M cConnell
                                                 Circuit Judge




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