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

                                   TENTH CIRCUIT                              November 8, 2018

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

                Petitioner - Appellant,

  v.                                                          No. 18-2064
                                                  (D.C. Nos. 2:16-CV-01408-KG-LF &
  OSCAR REYES-ESPINOZA,                                  2:15-CR-01399-KG-1 )
                                                            (D. New Mexico)
                Respondent - Appellee.


                              ORDER DENYING
                       CERTIFICATE OF APPEALABILITY *


Before HARTZ, McHUGH, and CARSON, Circuit Judges.



       Oscar Reyes-Espinoza seeks to appeal from the district court’s denial of his 28

U.S.C. § 2255 petition for post-conviction relief. Construing his notice of appeal as an

application for a certificate of appealability (“COA”), we deny his application and

dismiss this appeal.

                                          BACKGROUND

       Mr. Reyes-Espinoza pleaded guilty to illegal entry after deportation but did so

without the benefit of a plea agreement. At his change-of-plea hearing, he disputed an


       *
        This order is not binding precedent, except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
element of the crime, claiming that there was a “possibility” that he is a United States

citizen. ROA, Vol. 1 at 56. He asserted that his stepfather had tried to adopt him, but he

acknowledged that he could not provide any proof that the adoption had gone through or

that he had obtained United States citizenship. The magistrate judge taking his plea

responded by explaining the consequences of pleading guilty: “You do understand that . .

. once I accept your plea and you’re sentenced you’re going to be deported.” Id. at 57.

Mr. Reyes-Espinoza replied that he did understand and explained that he would “rather

be deported and try to get all of [his] legal matters the right way.” Id. Apparently trying

to clarify, the magistrate then inquired, “right now you’re a Mexican citizen until you

prove you’re a US citizen, is that about it?” Id. Mr. Reyes-Espinoza responded in the

affirmative.

       At sentencing, the Presentencing Report calculated the advisory guideline range at

77 to 96 months, and neither party objected to that calculation. But the sentencing court

determined the PSR “overrepresented the seriousness of [Mr. Reyes-Espinoza’s] criminal

history” and departed downward to a range of 57 to 71 months, ultimately sentencing him

to 57 months in prison. Id. at 91. After sentencing, Mr. Reyes-Espinoza’s attorney

followed him back to his holding cell and “explained to him the significance of the

district judge’s downward departure.” Id. at 96. The attorney then “discussed with

[Mr.] Reyes-Espinoza his appellate rights and offered to file a notice of appeal on his

behalf,” but Mr. Reyes-Espinoza did not respond or instruct his attorney to file an appeal.

Id. at 96–97. Before he left, the “attorney asked [Mr.] Reyes-Espinoza if he had any other



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questions, thoughts or concerns, and made sure that [Mr.] Reyes-Espinoza knew how to

contact him if necessary.” Id. at 97.

       Mr. Reyes-Espinoza then filed a timely petition for post-conviction relief under 28

U.S.C. § 2255. He raised several claims for relief, but the only one maintained on appeal

is a claim of ineffective assistance of counsel, specifically that Mr. Reyes-Espinoza’s

attorney failed to adequately consult with him about an appeal, violating Roe v.

Flores-Ortega, 528 U.S. 470, 480 (2000).1 Mr. Reyes-Espinoza claimed that his

attorney’s consultation outside of his holding cell was inadequate because the attorney

was obligated “to demand a response” from Mr. Reyes-Espinoza and “to inform

Mr. Reyes[-Espinoza] that in the absence of a response he would not file the appeal.” Id.

at 105. The district court disagreed, concluding that “[t]hese facts make clear that the

attorney adequately ‘consulted’ with [Mr.] Reyes-Espinoza about an appeal under




       1
         Initially, Mr. Reyes-Espinoza’s ineffective assistance claim was based on a
failure to appeal. He claimed that he had asked his attorney to file an appeal and the
attorney failed to do so. But the magistrate judge held an evidentiary hearing on the issue
and found that Mr. Reyes-Espinoza did not request an appeal. Despite the
failure-to-consult claim not being raised, the magistrate judge addressed both the
failure-to-appeal and failure-to-consult claims in its recommendation to the district court.
When the district court accepted the magistrate’s recommendation, it too explicitly
addressed the failure-to-consult claim. Because the failure-to-consult claim was “passed
upon below,” it is preserved and properly before us on appeal. See Singleton v. Wulff, 428
U.S. 106, 120 (1976) (“It is the general rule, of course, that a federal appellate court does
not consider an issue not passed upon below.”); United States v. Taylor, 715 F. App’x
740, 740 (9th Cir. 2018), reh’g denied (May 2, 2018), cert. denied, 2018 WL 3660148
(U.S. Oct. 1, 2018) (“Despite Taylor’s failure to object to the admissibility of the
statements in his pretrial Motion in Limine, because the district court explicitly ruled on
the admissibility of Taylor’s statements, we review de novo.”)
                                                 3
[Flores-Ortega].” Id. at 114. The district court dismissed Mr. Reyes-Espinoza’s § 2255

petition and declined to issue a COA. Mr. Reyes-Espinoza then brought this appeal.

                                            ANALYSIS

       Because the district court denied a COA, we lack jurisdiction to consider the

merits of Mr. Reyes-Espinoza’s appeal unless we issue a COA. See 28 U.S.C.

§ 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). And we will issue a

COA “only if the applicant has made a substantial showing of the denial of a

constitutional right.” Okyere v. Rudek, 732 F.3d 1148, 1149 (10th Cir. 2013) (quoting 28

U.S.C. § 2253(c)(2)). That standard requires “showing that reasonable jurists could

debate whether (or, for that matter, agree that) the [§ 2255 petition] should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Id. at 1149–50 (quoting Slack v. McDaniel, 529 U.S.

473, 484 (2000)). Where, as here, the “district court has rejected the constitutional claims

on the merits, the showing required . . . is straightforward: The petitioner must

demonstrate that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. Mr. Reyes-Espinoza

filed an opening brief challenging portions of the district court’s decision but did not file

an application for a COA. In such cases, we construe the notice of appeal as a request for

a COA, Frost v. Pryor, 749 F.3d 1212, 1222 n.6 (10th Cir. 2014); see also United States

v. Gordon, 172 F.3d 753, 753–54 (10th Cir. 1999) (citing Fed. R. App. P. 22(b)(2)),

limited to the issue raised in the opening brief, see United States v. Neighbors, 607 F.



                                                  4
App’x 795, 797, 800 n. 4 (10th Cir. 2015) (noting that issues that are “not argued in [the]

opening brief” are abandoned).

       On appeal, Mr. Reyes-Espinoza raises only a failure-to-consult claim under

Strickland v. Washington, 466 U.S. 668 (1984) and Flores-Ortega, 528 U.S. 470,

asserting that his counsel was deficient because he failed to adequately consult

Mr. Reyes-Espinoza about an appeal. Under Flores-Ortega, “counsel 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.” 528 U.S. at 480.

Mr. Reyes-Espinoza thus raises two issues in support of his claim on appeal: first,

whether there was a nonfrivolous ground for appeal, and second, whether

Mr. Reyes-Espinoza’s attorney adequately consulted with him by making “reasonable

effort[s] to discover [his] wishes.” See Pet’r’s Br. at 16, 19, 21. Under Strickland,

Mr. Reyes-Espinoza is required to show that his counsel’s performance was deficient and

that he was prejudiced by that deficiency. 466 U.S. at 687. Thus, overlaying the COA and

Strickland standards, Mr. Reyes-Espinoza must show that a reasonable jurist could debate

that his attorney’s consultation “fell below an objective standard of reasonableness” when

he failed to demand a response from Mr. Reyes-Espinoza about an appeal. See id. at 688.

Even assuming Mr. Reyes-Espinoza had nonfrivolous grounds to appeal, he cannot make

that showing.



                                                 5
       Mr. Reyes-Espinoza’s fundamental claim is that “[i]f the consultation regarding

the appeal does not include a request for direction from the defendant, then it is not a

consultation.” Pet’r’s Br. at 22. Seemingly in support of this definition of a consultation,

Mr. Reyes-Espinoza cites Baker v. Kaiser, 929 F.2d 1495 (10th Cir. 1991). There, we

held that counsel adequately advises a client of her appellate rights by, among other

things, “inquir[ing] whether the defendant wants to appeal the conviction; if that is the

client’s wish, counsel must perfect an appeal.” Baker, 929 F.2d at 1499.

Mr. Reyes-Espinoza’s argument assumes that an offer to appeal, as made here, is not an

inquiry into the defendant’s desire to appeal. Adopting this approach would require the

courts to police the precise phrasing used by attorneys when they speak with their clients.

Strickland does not permit this level of judicial scrutiny. See 466 U.S. at 689. Instead, our

review is “highly deferential,” avoiding the “tempt[ation] . . . to second-guess counsel’s

assistance” and the “distorting effects of hindsight.” Id.

       Under the circumstances—after a guilty plea and a significant downward

departure from the Guidelines sentencing range—counsel adequately consulted by

explaining the advantages and disadvantages of an appeal, offering to file that appeal,

and, when he received no response, asking if Mr. Reyes-Espinoza had any further

questions. He was not required to demand a response from Mr. Reyes-Espinoza or to

phrase his offer as a yes-or-no question. Under Strickland’s forgiving standard and these

facts, we conclude that no reasonable jurist could debate that Mr. Reyes-Espinoza’s

attorney adequately consulted with him about an appeal.



                                                  6
                                     CONCLUSION

      For the reasons stated, we deny Mr. Reyes-Espinoza’s COA application and

dismiss his appeal.

                                          Entered for the Court


                                          Carolyn B. McHugh
                                          Circuit Judge




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