                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          April 7, 2006
                                   TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                          Clerk of Court


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 05-4259
                                                      (District of Utah)
v.
                                               (D.C. No. 2:05-CV-265-DS and
                                                       2:02-CR-246)
DANIEL JOSEPH PALERMO,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before MURPHY, SEYMOUR and McCONNELL, Circuit Judges.


      Daniel Joseph Palermo, appearing pro se, seeks to appeal the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his

sentence. The matter is before this court on Palermo’s request for a certificate of

appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be

taken from a “final order in a proceeding under section 2255” unless the movant

first obtains a COA). To be entitled to a COA, Palermo must demonstrate “that


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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.”

Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (quotations omitted).     Because

we conclude Palermo has made that showing with respect to the claim his trial

counsel was ineffective for failing to perfect a direct appeal, a certificate of

appealability is granted on that issue.

      Pursuant to the terms of a plea agreement, Palermo pleaded guilty to

possession of an unregistered sawed-off shotgun. He was sentenced on November

11, 2002 to a term of sixty-four months’ imprisonment. Palermo did not file a

timely direct appeal. Eight months after he was sentenced, however, he filed a

motion requesting the district court to vacate his sentence and impose a new

judgment so he could perfect a direct appeal. In support of his motion, Palermo

asserted, inter alia, that his counsel was ineffective for failing to file a notice of

appeal. The district court construed Palermo’s motion as one filed pursuant to 28

U.S.C. § 2255 and denied it. This court vacated the district court’s order and

remanded the matter for further proceedings, concluding the district court erred

when it recharacterized Palermo’s motion without affording “him the opportunity

to withdraw the motion or amend it to include any additional claims that he might

have.” United States v. Palermo, 120 Fed. Appx. 275, 277 (10th Cir. 2005).


                                          -2-
      On March 28, 2005, Palermo filed the instant § 2255 motion, raising, inter

alia, a claim his counsel was ineffective for failing to perfect a direct appeal. See

Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). In support of this claim,

Palermo asserted he orally instructed his attorney to file an appeal immediately

after he was sentenced and then repeatedly attempted to communicate with his

attorney by telephone. According to Palermo, during the ten days after he was

sentenced his attorney refused to accept his calls and failed to contact him. An

affidavit from Palermo’s attorney, however, was also filed with the district court.

In that affidavit, counsel stated he advised Palermo of his right to file an appeal

and Palermo indicated he did not want to appeal. Counsel further stated he

advised Palermo to contact him if he changed his mind but he received no written

or oral indications Palermo wanted to proceed with an appeal, including voice

mail messages.

      The district court recognized the factual dispute created by the conflicting

written statements filed by Palermo and his attorney. The court, however, did not

hold an evidentiary hearing to resolve that dispute. Instead, it analyzed the

factors set out in Roe to conclude the circumstances corroborated defense

counsel’s account of the facts. Id. at 480. It then ruled Palermo had failed to

establish defense counsel’s performance was objectively unreasonable and




                                          -3-
dismissed Palermo’s § 2255 motion. The district court’s approach was a

misapplication of Roe.

      In Roe, the Supreme Court addressed the question of whether defense

counsel’s failure to consult with her client about a direct criminal appeal

constituted deficient performance pursuant to Strickland v. Washington, 466 U.S.

668 (1984). Roe, 528 U.S. at 477. The Court set out a list of factors for lower

courts to consider in determining whether counsel had a duty to consult with the

defendant about an appeal. Id. at 480. These factors, however, are applicable

only if the defendant did not specifically instruct counsel to file an appeal. Id. at

477 (stating the case at bar involved the issue of whether counsel was deficient

for not filing a notice of appeal when the defendant did not clearly convey his

wishes to counsel). The factors cannot be used to assess whether a defendant who

asserts he specifically instructed his attorney to file an appeal is more or less

credible than his attorney. Id. (“We have 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.”).

      Here, Palermo alleges he explicitly instructed his attorney to file an appeal.

If Palermo’s version of events is true, his counsel provided constitutionally

deficient performance. Id. The district court erred when it improperly applied

the Roe factors to assess Palermo’s credibility. Accordingly, it erred when it


                                          -4-
determined Palermo failed to establish that counsel’s performance fell below an

objective standard of reasonableness on the basis of the Roe factors.

         The order of the district court dismissing Palermo’s § 2255 motion is

vacated and this matter is remanded for further proceedings consistent with this

order.

                                         ENTERED FOR THE COURT



                                         Michael R. Murphy
                                         Circuit Judge




                                          -5-
