                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                              November 16, 2012
                                                             Elisabeth A. Shumaker
                                                                 Clerk of Court
                                  PUBLISH

              UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT



 JAMES EDWARD CLAYTON,

       Petitioner-Appellee,

 v.                                                    No. 11-7000

 JUSTIN JONES, DOC Director,

       Respondent-Appellant.


                 Appeal from the United States District Court
                    for the Eastern District of Oklahoma
                    (D.C. No. 6:06-CV-00014-FHS-KEW)


Submitted on the Briefs:

E. Scott Pruitt, Attorney General, and Dianne L. Slayton, Assistant Attorney
General, State of Oklahoma, Oklahoma City, Oklahoma, on the briefs for
Respondent-Appellant.

Fred P. Gilbert of Tulsa, Oklahoma, on the brief for Petitioner-Appellee.


Before BRISCOE, Chief Judge, SEYMOUR, and EBEL, Circuit Judges.


SEYMOUR, Circuit Judge.
      James Clayton, a state prisoner, filed a petition for a writ of habeas corpus

under 28 U.S.C. § 2254, contending he received ineffective assistance of counsel

when his attorney ignored his repeated instructions to file an appeal after he pled

guilty. The magistrate judge found that Mr. Clayton’s attorney disregarded his

request to file an appeal and recommended that the district court conditionally

grant the writ and order that Mr. Clayton be allowed to withdraw his guilty plea

within 120 days. The district court agreed and so held. On appeal, the State

contends the district court’s finding is clearly erroneous. It argues alternatively

that even if habeas relief is warranted, the district court should have only allowed

Mr. Clayton an out of time direct appeal, rather than the right to withdraw his

guilty plea.

      Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm the

finding that Mr. Clayton received ineffective assistance of counsel on appeal. We

order a limited remand to the district court to allow it to supplement the record

with its reasons for ordering as the remedy that Mr. Clayton be permitted to

withdraw his guilty plea. We will retain jurisdiction over the appeal while the

district court supplements the record.



                                I. BACKGROUND

A. Procedural History

      In 1983, Mr. Clayton, acting pro se, pled guilty to second degree murder

                                         -2-
and other charges arising from a robbery which resulted in the death of a woman

who was struck by Mr. Clayton’s car as he was attempting to elude police. We

described in our first decision involving Mr. Clayton’s conviction what then

occurred:

      Several days later, petitioner sought to withdraw his guilty plea on
      several grounds, including that he was not competent to enter the
      plea. The trial court appointed counsel to represent petitioner and
      ordered that his mental status be evaluated. The court subsequently
      held an evidentiary hearing, after which it denied the motion to
      withdraw the plea. Petitioner appealed, challenging the validity of
      his plea on three grounds, including that he was not competent to
      enter the plea because he had a mental impairment and he was under
      the influence of drugs at the time of the plea. The Oklahoma Court
      of Criminal Appeals (OCCA) rejected his arguments and affirmed his
      convictions.

      Thereafter, petitioner filed a motion for post-conviction relief in
      which he raised several new challenges to the validity of his plea and
      to the propriety of his sentence and he asserted a claim for
      ineffective assistance of appellate counsel for failing to raise these
      additional issues on direct appeal. The trial court denied his
      post-conviction application, and the OCCA affirmed. The OCCA
      first concluded that petitioner had waived any claims of ineffective
      assistance of trial counsel by failing to raise them on direct appeal,
      where he was represented by different counsel. The court then
      considered petitioner’s claim that his appellate counsel had provided
      ineffective assistance, and rejected that claim on the merits.

Clayton v. Oklahoma (Clayton I), No. 98-7105, 1999 WL 1037510 *1 (10th Cir.

Nov. 12, 1999) (unpublished).

      After exhausting his claims in state court as described above, Mr. Clayton

filed a federal habeas action in 1996 claiming, among other things, his 1983

guilty plea was involuntary due to ineffective assistance of counsel. In 1999, we

                                        -3-
reversed the district court’s 1998 conclusion that the claim was procedurally

barred and remanded for further proceedings.

      The magistrate judge held an evidentiary hearing on Mr. Clayton’s claims

and issued a recommendation in March 2003 that Mr. Clayton be granted habeas

relief. The magistrate judge found that Mr. Clayton had been forced to choose

between going to trial with ineffective counsel or proceeding pro se. Aple. Cross-

App., vol. I at 4. The judge further found that Mr. Clayton’s waiver of counsel

was not knowing and intelligent. Id. at 5. The district court agreed, conditionally

granted the writ, and ordered that Mr. Clayton be allowed to withdraw his plea

within 120 days.

      Back in state court, in September 2004 Mr. Clayton again entered a blind

guilty plea to five counts, including second degree murder. He received a life

sentence for the murder charge. 1 He was represented by counsel, Mr. Albert

Hoch, Jr. During the plea and sentencing proceedings, the state district court

informed Mr. Clayton that he had a right to appeal the decision and that he had

ten days in which to do so. The court also asked Mr. Hoch to “stay on as [Mr.

Clayton’s] attorney for a period of ten days” and “stay on through any appeal time

that might run.” Aplt. App., vol. I at 129. Neither an application to withdraw the



      1
        Although Mr. Clayton continues to serve his life sentence, he has
completed the sentences for the remaining four counts. He does not challenge
those four counts in this proceeding.

                                        -4-
plea nor a direct appeal was filed.

      In August 2005, Mr. Clayton filed pro se an application for post-conviction

relief in the state district court contending, inter alia, that his attorney made false

pre-plea promises to him and that he had received ineffective assistance of

counsel when his attorney ignored his repeated requests to file a direct appeal.

Without holding an evidentiary hearing, the court (the same judge who took Mr.

Clayton’s September 2004 guilty plea) issued a lengthy decision denying Mr.

Clayton’s application on the merits. The court relied on the transcript of the

September 15, 2004, plea hearing and its own familiarity with Mr. Clayton’s case

in rejecting his petition. See Aple. App., Vol. I at 62 (“It is the finding of this

Court that [Mr. Clayton] has not met his burden of showing that counsel’s

performance was deficient and further finds that [Mr. Clayton] was represented at

all stages of this matter by experienced and competent attorney who provided him

effective assistance of counsel.”). Ultimately, the court concluded as follows:

      The Court has before it a 60 year old Defendant/Petitioner that is
      very savvy of the court system, and has earned over 360 college
      hours while in prison. The Court, Prosecution and Defense went
      over every aspect of the blind plea meticulously, ever mindful of the
      fact that this Defendant/Petitioner has tried for twenty-two years to
      get a rehearing in this case, wanted to make sure that
      Defendant/Petitioner was fully aware of what he was doing and
      understood all consequences, that he understood that he had a right to
      continue to jury trial in five days, and that he was satisfied with the
      representation of his attorney. The Court is fully and completely
      satisfied that Defendant/Petitioner knowingly, willingly, and
      intelligently entered this blind plea and that it was proper in all
      respects. Further, from the correspondence received from the

                                           -5-
      Defendant after the sentencing, this Court is fully satisfied that
      Defendant did not wish to withdraw this plea. The Defendant had no
      grounds on which to withdraw his plea, and has stated no grounds
      upon which to base a withdraw [sic] of his plea.
             The Court feels that this Defendant did not wish to withdraw
      his plea and was satisfied and wished to proceed to the parole board,
      and that Defendant did not become dissatisfied with his plea until he
      was denied parole.

Id. at 63-64.

      Mr. Clayton appealed the state district court’s ruling to the OCCA. In a

written order issued on December 20, 2005, the OCCA affirmed denial of

post-conviction relief, holding Mr. Clayton’s claims procedurally barred because

they could have been raised on direct appeal. The OCCA outlined in detail and

agreed with the trial court’s analysis of Mr. Clayton’s claims for relief. See id. at

108 (“We find nothing in this record supporting [Mr. Clayton’s] claim that his

pleas were not knowing and voluntarily entered, nor do we find support for [Mr.

Clayton’s] claims that he was denied effective assistance of counsel.”). Neither

the state district court nor the OCCA made a finding with regard to whether Mr.

Clayton had asked Mr. Hoch to file an appeal.

      Mr. Clayton again filed a petition for habeas relief in federal district court.

The district court denied the petition as procedurally barred. In Clayton II, we

granted a certificate of appealability on the issue of whether counsel’s alleged

failure to enter an appeal on behalf of Mr. Clayton constituted ineffective

assistance of counsel. We rejected the notion that a criminal defendant’s relative


                                          -6-
sophistication as a pro se litigant could be a sufficient basis for denying an

ineffective assistance of counsel claim that his attorney had disregarded specific

instructions to appeal. We explained, “That a particular litigant demonstrates

knowledge of the judicial process does not lessen his entitlement under the Sixth

Amendment to ‘the Assistance of Counsel for his defense.’” Id. at 424 (quoting

U.S. Const. amend. VI (emphasis added)). “When counsel fails to follow explicit

instructions to file an appeal, a defendant is entitled to a new appeal, regardless of

whether an appeal had or would likely have had any merit.” Id. at 423 (citing

Peguero v. United States, 526 U.S. 23, 28 (1999); United States v. Garrett, 402

F.3d 1262, 1267 (10th Cir. 2005)). We vacated the district court judgment and

remanded “for a hearing to determine whether Mr. Clayton requested counsel to

file an appeal.” Id. at 425.

B. Evidentiary Hearing

      At the evidentiary hearing before a magistrate judge, Mr. Clayton

introduced the testimony of six witnesses, including himself. Mr. Clayton

testified that before his plea hearing, Mr. Hoch told him that if he entered a guilty

plea to the charges, he would be home by Christmas of that year. Mr. Hoch also

told Mr. Clayton not to say anything in the courtroom about the alleged deal.

Although Mr. Clayton expressed reservations, Mr. Hoch said, “‘If anything goes

wrong . . . we will appeal.’ He said, ‘I’ll file a motion to withdraw [the plea], you

can appeal it,’ and said ‘we’ll have it and we’ll undo the deal right there.’” Aplt.

                                          -7-
App., vol. III at 686. Mr. Clayton testified that just before entering the courtroom

to plead guilty, he told Mr. Hoch, “‘Okay. Well, let’s appeal it then.’” Id. at 687.

      Mr. Clayton also testified that after the hearing, he and his family met with

Mr. Hoch in a holding cell. Mr. Clayton told Mr. Hoch, “don’t forget to appeal”

the second degree murder count. Id. at 690. Mr. Hoch “waved his hand and kept

going and . . . said ‘got it’ or ‘okay’ or something.” Id. at 691.

      Mr. Clayton explained that within a few days of entering his guilty plea,

jail employees told him that he would not be coming up for parole that November.

Mr. Clayton then began trying to contact Mr. Hoch. His wife and brother-in-law

also placed calls to Mr. Hoch. Mr. Clayton testified that during the ten-day

period after his plea, he made twenty-two phone calls to Mr. Hoch, but none of

the calls were accepted. Mr. Hoch never spoke to Mr. Clayton or to those calling

on his behalf. Jail telephone records corroborated that Mr. Clayton repeatedly but

unsuccessfully called Mr. Hoch’s office. Jail records also showed that Mr.

Clayton mailed a letter to Mr. Hoch on September 24, asking him to file an

appeal. A copy of the letter was admitted into evidence.

      During the ten-day window for withdrawing the plea, Mr. Clayton sent the

state district court judge two letters, both of which were admitted into evidence.

Neither letter mentioned that Mr. Clayton wanted to withdraw his plea and appeal,

although the second letter acknowledged the deadline to file an application to

withdraw the plea. See id. at 802 (“I have until next Monday – September 27,

                                          -8-
2004 – to file a motion to withdraw . . . (which will not happen I pray).”). Mr.

Clayton testified that he wrote the first letter the day after his sentencing, when

he assumed his understanding of the plea deal was correct. He testified that he

wrote the second letter because he was concerned about whether he would receive

credit for all of the time he had already served.

      Jerry Seitz, a minister, testified at the hearing on Mr. Clayton’s behalf. He

said he was present when Mr. Clayton and his family met with Mr. Hoch before

the plea hearing. Mr. Seitz heard Mr. Hoch say that Mr. Clayton would be home

by Christmas if he pled guilty. Ten or twelve days after Mr. Clayton pled guilty,

Mr. Clayton’s wife contacted Mr. Seitz and asked him to call Mr. Hoch on behalf

of Mr. Clayton. Mr. Seitz called Mr. Hoch three or four times and left messages

each time. On the fourth call, Mr. Seitz specifically stated in the message that

Mr. Clayton wanted to appeal. He never heard back from Mr. Hoch.

      Attorney Steve Presson testified that Mr. Clayton’s wife called him in late

2004, shortly after the deadline for attempting to withdraw Mr. Clayton’s plea.

She asked him for help withdrawing the guilty plea. She told him that she and

Mr. Clayton had been unable to reach Mr. Hoch. Mr. Presson attempted to call

Mr. Hoch five or six times over the next several weeks and left his name and

phone number each time, but never spoke to him.

      Muskogee County Sheriff Charles Pearson testified that he knows Mr.

Clayton from the Muskogee County jail. Based on his experience, he found Mr.

                                          -9-
Clayton to be “honest and truthful in the matters that required investigation or

complaints that he had made . . . .” Id. at 626.

      Craig Sutter, from the Oklahoma Indigent Defense System, testified that

Mr. Hoch, as appointed counsel, would have been expected to accept at least one

telephone call from his client during the ten-day window for applying to withdraw

a guilty plea.

      The State did not present any witnesses at the hearing. It submitted several

exhibits into evidence, including an affidavit from Mr. Hoch. In the affidavit Mr.

Hoch stated,

      If Mr. Clayton had indicated prior to entering a plea that he wanted
      to withdraw it immediately after entering, I would not have gone
      through the frivolous event of entering a sham plea. . . . At the time
      of his sentencing, Mr. Clayton appeared satisfied with his sentence
      and he never indicated a desire to appeal. At no time after the
      sentence did Mr. Clayton express a desire to withdraw his plea and/or
      appeal, either orally or in writing. If he had so indicated, a Motion
      to Withdraw Plea would have been filed and a hearing date would
      have been set. . . .

Aplt. App., vol. II at 558-59. Mr. Hoch also averred that he had never promised

Mr. Clayton could be home by Christmas, and he had “no recollection of, nor any

record of having ever received” the letter from Mr. Clayton asking to appeal. Id.

C. District Court Decision

      After the evidentiary hearing, the magistrate judge issued a report and

recommendation. After summarizing the evidence, the court found “the

respondent has failed to refute petitioner’s allegation that his attorney failed to

                                         -10-
comply with petitioner’s request to file an appeal.” Aplt. App., vol. III at 967.

The magistrate judge recommended that the case “be held in abeyance for not

longer than 120 days to allow petitioner to withdraw his guilty plea to Count 1,”

the second degree murder count. Id. After the parties filed their objections to the

report and recommendation, the district court adopted and affirmed the

magistrate’s findings and recommendations. Id. at 1012.



                           II. MERITS OF PETITION

      The State first argues on appeal that the district court committed clear error

in finding that Mr. Clayton had asked his attorney Mr. Hoch to file an appeal

from his guilty plea. Because Mr. Clayton’s habeas claim was not decided on the

merits in the state court proceedings, we exercise our “independent judgment” and

“review the federal district court’s conclusions of law de novo.” McCracken v.

Gibson, 268 F.3d 970, 975 (10th Cir. 2001). We review the court’s factual

determinations for clear error. Id.; see also Welch v. Workman, 639 F.3d 980, 992

(10th Cir. 2011).

      In Oklahoma, if a defendant’s conviction is based on a guilty plea, he may

pursue an appeal to the OCCA only by a petition for a writ of certiorari. Hickman

v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998) (citing Okla. Stat. Ann. tit. 22

§ 1051). First, however, the defendant must file an application in the trial court

to withdraw his plea within ten days of the judgment and sentence, with a request

                                        -11-
for an evidentiary hearing. Okla. R. Crim. App. 4.2(A); see also Hickman, 160

F.3d at 1271. The court must hold an evidentiary hearing and rule on the

application to withdraw the plea within thirty days from the date the application

was filed. Okla. R. Crim. App. 4.2(B). “The application to withdraw guilty plea

and the evidentiary hearing are both necessary and critical steps in securing this

appeal . . . .” Randall v. State, 861 P.2d 314, 316 (Okla. Crim. App. 1993). If the

trial court denies the motion to withdraw, the defendant may then appeal by way

of a petition for writ of certiorari. See Okla. Stat. Ann. tit. 22 § 1051(a); Okla. R.

Crim. App. 4.2(D).

      Although referred to as a certiorari appeal, “Oklahoma has always treated

this appeal as an appeal of right.” Randall, 861 P.2d at 316. Accordingly,

defendants are entitled to effective assistance of counsel during the period

available for appeal from the conviction. Hickman, 160 F.3d at 1273; see also

Evitts v. Lucey, 469 U.S. 387, 396 (1985).

      By the same token, “because appeals are a part of the criminal process, a

defendant is denied effective assistance of counsel if he asks his lawyer to perfect

an appeal and the lawyer fails to do so by failing to file a brief, a statement of

appeal, or otherwise.” Abels v. Kaiser, 913 F.2d 821, 823 (10th Cir. 1990)

(internal citations omitted); see also Roe v. Flores-Ortega, 528 U.S. 470, 477

(2000) (“[A] lawyer who disregards specific instructions from the defendant to

file a notice of appeal acts in a manner that is professionally unreasonable.”). If

                                         -12-
counsel does not “file a requested appeal, a defendant is entitled to [a new] appeal

without showing that his appeal would likely have had merit.” Flores-Ortega,

528 U.S. at 477 (quoting Peguero v. United States, 526 U.S. 23, 28 (1969))

(alteration in original) (internal quotation marks omitted).

      The district court, by adopting the magistrate judge’s findings and

recommendations, found the State had not refuted Mr. Clayton’s evidence that his

attorney failed to comply with his request to file an appeal. Ample evidence

supports the district court’s finding. Mr. Clayton provided testimony regarding

his multiple requests that Mr. Hoch file an appeal and his repeated but fruitless

attempts to contact Mr. Hoch during the ten-day window for filing an application

to withdraw the guilty plea, a precursor to an appeal. Mr. Clayton’s testimony

was corroborated by jail telephone records showing twenty-two attempted calls to

Mr. Hoch during this ten-day period and a jail mail record showing that Mr.

Clayton mailed Mr. Hoch a letter during the same period. Other witnesses

testified of their own unsuccessful efforts to contact Mr. Hoch on Mr. Clayton’s

behalf to seek an appeal.

      The State asks us to disregard Mr. Clayton’s evidence, including his

testimony and the letter to Mr. Hoch, for credibility reasons. It claims “any

reliance on the credibility of the Petitioner, who once again wants out of a plea

deal and has multiple felonies is clearly erroneous.” Aplt. Br. at 18. There is no

merit to this argument. “We must defer to the district court’s credibility

                                         -13-
determinations.” Romano v. Gibson, 239 F.3d 1156, 1173 (10th Cir. 2001). And

here, where Mr. Clayton’s testimony was corroborated by jail records and the

testimonies of an attorney and a pastor, the district court’s finding that he asked

his attorney to file an appeal cannot be clearly erroneous. See Anderson v. City of

Bessemer City, 470 U.S. 564, 575 (1985) (“[W]hen a trial judge’s finding is based

on his decision to credit the testimony of one of two or more witnesses, each of

whom has told a coherent and facially plausible story that is not contradicted by

extrinsic evidence, that finding, if not internally inconsistent, can virtually never

be clear error.”).

      Evidence relied upon by the State does not persuade us otherwise. The

State points to the transcript of Mr. Clayton’s plea hearing, when Mr. Clayton

testified he was satisfied with his counsel’s representation. But Mr. Clayton’s

testimony during the plea hearing does not bear upon whether he subsequently

asked his attorney to appeal, or to file an application to withdraw the plea, for

reasons that became apparent only after the hearing. For a similar reason, Mr.

Hoch’s affidavit does not render the district court’s finding clearly erroneous. As

the magistrate judge noted, Mr. Hoch’s affidavit failed to address the unanswered

calls to his office and unreturned messages from Mr. Clayton’s surrogates.

      The district court’s determination that Mr. Clayton asked his attorney to

file an appeal on his behalf is “‘plausible in light of the record viewed in its

entirety,’” Amadeo v. Zant, 486 U.S. 214, 223 (1988) (quoting Anderson, 470

                                         -14-
U.S. at 573-74), and therefore cannot be clearly erroneous. Mr. Clayton received

ineffective assistance of counsel when his attorney disregarded his request to

appeal. Flores-Ortega, 528 U.S. at 477.



                                   III. REMEDY

      Having affirmed the district court’s finding that Mr. Clayton was denied his

right to appeal due to ineffective assistance of counsel, we turn to the remedy

granted by the district court. The court granted Mr. Clayton a conditional writ,

allowing him 120 days to withdraw his guilty plea as to Count 1 of his conviction.

The State argues this remedy is an abuse of discretion because the district court

found no infirmity in Mr. Clayton’s conviction or sentence, only in his

representation on appeal.

      “Federal habeas corpus practice . . . indicates that a court has broad

discretion in conditioning a judgment granting habeas relief.” Hilton v.

Braunskill, 481 U.S. 770, 775 (1987). Federal courts are authorized under 28

U.S.C. § 2243 to “dispose of the matter as law and justice require.” In light of

this broad discretion to craft appropriate habeas relief, “[w]e review the district

court’s formulation of an appropriate habeas corpus remedy for abuse of

discretion.” Douglas v. Workman, 560 F.3d 1156, 1176 (10th Cir. 2009).

      “Cases involving Sixth Amendment deprivations are subject to the general

rule that remedies should be tailored to the injury suffered from the constitutional

                                        -15-
violation and should not unnecessarily infringe on competing interests.” United

States v. Morrison, 449 U.S. 361, 364 (1981); see also Williams v. Jones, 571

F.3d 1086, 1090 (10th Cir. 2009) (same). Generally when a defendant is denied

the right to appeal because of ineffective assistance of counsel, “the appropriate

remedy is to grant his petition for a writ of habeas corpus unless the . . . state

courts provide him with an out of time appeal within a reasonable time.” Baker v.

Kaiser, 929 F.2d 1495, 1500 (10th Cir. 1991); see e.g., Johnson v. Champion, 288

F.3d 1215, 1230 (10th Cir. 2002); Romero v. Tansy, 46 F.3d 1024, 1031 (10th Cir.

1995); Abels, 913 F.2d at 823.

      Here, however, the district court did not grant Mr. Clayton the right to file

a motion to withdraw his guilty plea, which would enable him to file a direct

appeal out of time should the state trial court deny the motion. 2 Instead, the court

granted a conditional writ ordering the State to allow Mr. Clayton to withdraw his

guilty plea as to Count 1 of his conviction. Neither the magistrate judge’s report

and recommendation nor the district court’s order explains why this was the

appropriate form of relief.

      Certainly a district court is not confined to only granting an appeal out of



      2
        Under Oklahoma criminal procedures, a new direct appeal would most
likely take the form initially of the right to submit an application to withdraw the
plea. Mr. Clayton would then be afforded an evidentiary hearing and a right to
appeal if the application to withdraw the plea were denied. See discussion, supra
at 10-11.

                                          -16-
time when a petitioner has been denied his right to a direct appeal. It is not

unprecedented for a district court to fashion a remedy for ineffective assistance of

counsel on appeal that goes beyond an appeal out of time. For example, in

Hannon v. Maschner, 981 F.2d 1142, 1144 (10th Cir. 1992), the petitioner’s

appointed trial counsel failed to file a direct appeal from his conviction. After the

petitioner had been imprisoned for thirty-three years, the district court granted an

unconditional writ ordering that he be released from custody. Id. We affirmed.

We explained that after thirty-three years of imprisonment without an appeal, “a

direct appeal would not vitiate the prejudice to the petitioner from the denial of

direct appellate review.” Id. at 1145. Similarly, we have observed that where a

state prisoner has suffered an unconstitutional delay of appeal, in “egregious

cases” the proper relief may be “the outright discharge of the petitioner from state

custody.” Harris v. Champion, 938 F.2d 1062, 1070 (10th Cir. 1991). Other

courts have affirmed similarly broad remedies for petitioners who have been

denied the right to appeal. See, e.g., Ramchair v. Conway, 601 F.3d 66 (2d Cir.

2010) (affirming grant of new trial rather than new appeal as remedy for

ineffective assistance of counsel on appeal because of long delay since

conviction, further delay that would be caused by an appeal, and “unassailably

meritorious” claim that should have been raised on appeal); Turner v. Bagley, 401

F.3d 718 (6th Cir. 2005) (granting unconditional writ to petitioner whose multiple

appointed appellate attorneys failed to file appellate brief for over eight years).

                                         -17-
      But in those cases, it was clear why a departure from the conventional

relief of a new appeal was warranted. Here, the district court offered no

explanation for why its chosen remedy of withdrawal of the guilty plea is the

appropriate type of relief. It is possible that the court believed this was a

similarly extraordinary case. Mr. Clayton has been imprisoned for nearly thirty

years and has not yet received constitutionally-sufficient process. But without an

explanation of why it exercised its discretion in the manner it did, we are unable

to review the district court’s decision.

      To facilitate our review of the remedy, we order a limited remand to allow

the district court to clarify why it granted Mr. Clayton a withdrawal of his guilty

plea rather than an appeal out of time. See 28 U.S.C. § 2106 (giving courts of

appeals power to “require such further proceedings to be had as may be just under

the circumstances”); see also, e.g., Steeley v. Chase, 443 F.3d 1290, 1295 (10th

Cir. 2006) (ordering limited remand to district court asking for explanation on the

record of evidentiary ruling); United States v. Davis, 912 F.2d 1210, 1215 (10th

Cir. 1990) (ordering limited remand to district court asking for explanation or

reasons for extent of departure from sentencing guidelines); Ramchair, 601 F.3d

at 681 (noting its prior remand to district court for “clarification of its decision to

grant Ramchair a new trial, rather than a new appeal” to petitioner who received

ineffective assistance of counsel on appeal). The district court shall supplement

the record in this appeal within sixty days with an explanation of its reasons for

                                           -18-
the remedy given. We will retain jurisdiction over the appeal, and no new notice

of appeal shall be required when supplementation of the record is complete.



                                IV. CONCLUSION

      We AFFIRM the district court’s determination that Mr. Clayton is entitled

to habeas relief because he received ineffective assistance of counsel in state

court. Given that the district court did not explain its reasons for granting a

conditional writ requiring the state to allow Mr. Clayton to withdraw his guilty

plea, however, we REMAND this matter to the district court for an explanation.

We will retain jurisdiction over this appeal pending the district court’s ruling,

which shall be certified to this court as a supplemental record within sixty days.

The clerk of the court is instructed to transmit this opinion to the district court.




                                         -19-
