                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    April 18, 2008
                      UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                  TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 06-7084
                                              (D.C. Nos. 06-CV-131-RAW and
 v.
                                                      04-CR-95-WH)
                                                        (E.D. Okla.)
 RICHARD DANIEL BENOIT,

          Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.


      Defendant-Appellant Richard Daniel Benoit, a federal prisoner appearing

with counsel, seeks a certificate of appealability (“COA”) to challenge the district

court’s denial of his 28 U.S.C. § 2255 motion. Mr. Benoit’s appointed counsel

has filed an Anders brief and a motion to withdraw as attorney of record




      *
          This Order and Judgment is not binding precedent, except under the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. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
concurrent with the filing of this appeal. 1 See Anders v. California, 386 U.S. 738

(1967). Mr. Benoit was provided a copy of his counsel’s Anders brief but has not

filed a response, and the government has declined to file a brief. Having

jurisdiction under 28 U.S.C. §§ 2253 and 2255, we have conducted our own

independent review of the record. See Anders, 386 U.S. at 744. We hold that no

reasonable jurist could conclude that the district court’s denial was incorrect. See

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, we DENY Mr.

Benoit’s application for a COA, DISMISS his appeal, and GRANT counsel’s

motion to withdraw.

                                I. BACKGROUND

      Mr. Benoit was indicted by a federal jury on charges arising from a

carjacking in Adair County, Oklahoma, in January 2004. He entered into a plea

agreement in which he, inter alia, waived his rights to pursue appellate and post-

conviction relief. Pursuant to the plea agreement, two of the four charges against

Mr. Benoit were dismissed and he pleaded guilty to the remaining charges. At

sentencing, Mr. Benoit withdrew a previously-lodged objection to the pre-

sentence investigation report and was sentenced to two consecutive sentences for

a total of 288 months of imprisonment, which was within the advisory Guidelines


      1
             Because Mr. Benoit cannot take an appeal in a 28 U.S.C. § 2255
proceeding unless a COA has issued and the district court did not issue a COA,
we deem the filing of his appeal to be an application for COA. See Fed. R. App.
P. 22(b)(1), (2).

                                         -2-
range. The final judgment was entered on February 11, 2005. No appeal was

taken within the ten day period during which a direct appeal of a criminal verdict

would have been allowed.

      On January 31, 2006, Mr. Benoit filed an application for leave to file a

notice of appeal out of time. Because that motion stated that Mr. Benoit’s

defense counsel had promised to file a notice of appeal and failed to do so, the

district court, in an order dated March 24, 2006, construed the motion as one

pursuant to 28 U.S.C. § 2255, rather than dismissing the motion under its current

label for being untimely filed. 2 The district court then referred Mr. Benoit’s


      2
              Ordinarily, before a district court can recharacterize a pro se
litigant’s petition as a § 2255 motion, the district court is required to provide
notice to the litigant of its intention to do so and warn the litigant of the possible
consequences of a § 2255 classification, particularly those consequences relating
to second and successive habeas actions. See Castro v. United States, 540 U.S.
375, 382-83 (2003). The district court expressly acknowledged this legal
principle when recharacterizing Mr. Benoit’s motion. However, the district court
noted that in this case, refusing to recharacterize the motion would “severely
prejudice” Mr. Benoit because, if the court denied the motion, any subsequent §
2255 motion he filed would be time barred. R., Vol. 2, Doc. 2, at 2-3 (Dist. Ct.
Order, dated Mar. 24, 2006). Therefore, in an effort to avoid prejudicing Mr.
Benoit, the district court recharacterized the filing as a § 2255 motion and found
it timely. Mr. Benoit has not objected to this recharacterization, either before the
district court or before us. And we are sensitive to the judicial-access sentiments
animating the district court’s decision to recharacterize Mr. Benoit’s motion.
Assuming that the court’s action (as it appears to be) was a violation of Castro,
that need not detain us. We conclude that any such error would be harmless
because, as the district court noted, a subsequently-filed § 2255 motion by Mr.
Benoit would have been time barred. See United States v. Martin, 357 F.3d 1198,
1200 (10th Cir. 2004) (“Since any § 2255 motion filed by Appellant in the instant
case would be time barred, the district court’s failure to notify Appellant of the
recharacterization was harmless.”).

                                          -3-
designated § 2255 motion to a magistrate judge for an evidentiary hearing and

appointed Mr. Benoit counsel.

      At the evidentiary hearing, Mr. Benoit and his sister testified and an

affidavit from his former lawyer was submitted. In his affidavit, the attorney

indicated that he did not remember a specific conversation with Mr. Benoit about

an appeal in this case but stated that he typically advised clients of their appellate

rights and that an appeal must be filed within 10 days. He also said that given the

plea agreement and sentencing, he would have likely told Mr. Benoit that an

appeal would be pointless but he would file one if instructed to do so and would

then also file an Anders brief. Mr. Benoit’s sister testified that Mr. Benoit’s

attorney indicated in open court that he would file an appeal based on Blakely v.

Washington, 542 U.S. 296 (2004). Mr. Benoit testified that he asked his attorney

to file an appeal and his attorney agreed to do so, although Mr. Benoit could not

say what the grounds for the appeal would be. He did suggest, however, that

jailhouse rumors about people getting relief after Blakely made him think that he

should appeal.

      Based on the evidentiary hearing and a review of the plea hearing, the

magistrate judge concluded that Mr. Benoit did not present credible testimony

that he asked his attorney to file an appeal. Furthermore, the magistrate stated

that it appeared that what Mr. Benoit and his sister remembered regarding appeals

pertained to a previous case in which Mr. Benoit was represented by the same

                                          -4-
counsel who Mr. Benoit claims promised to appeal in this case. In that previous

case, Mr. Benoit was the subject of federal charges stemming from an incident

that occurred in Cherokee County, Oklahoma, in November 2003. He pleaded

guilty pursuant to a plea agreement, which included an appellate waiver, and was

sentenced on July 16, 2004. At sentencing, there was a discussion of Blakely’s

application to Mr. Benoit’s sentence, but the district court ultimately overruled

the Blakely objection. Mr. Benoit appealed his sentence, but we dismissed that

appeal based on his waiver of his appellate rights. See United States v. Benoit,

130 F. App’x 293 (10th Cir. 2005).

      In the instant case, the district court adopted and affirmed the magistrate

judge’s report and recommendation on July 24, 2006. An appeal was timely filed

on August 2, 2006.

                                 II. DISCUSSION

      For a COA to issue, Mr. Benoit must demonstrate that reasonable jurists

would find the district court’s denial of his petition debatable. See Slack, 529 U.S.

at 484. In assessing his claims, we review the district court’s factual findings for

clear error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279,

1282 (10th Cir. 2001).

      Although the waiver in Mr. Benoit’s plea agreement has significantly

limited his appellate rights, Mr. Benoit would still be entitled to a delayed appeal

if he asked his attorney to file an appeal and his attorney ignored his request. See

                                         -5-
United States v. Garrett, 402 F.3d 1262, 1266-67 (10th Cir. 2005). Mr. Benoit’s

only claim is that his attorney had agreed to file an appeal and never did; he does

not argue that his plea was not knowing and voluntary. Thus, we only consider

the issue of Mr. Benoit’s potential entitlement to a direct appeal based on his

claim that his attorney did not file an appeal as instructed. Id. at 1267 n.7.

Whether such an appeal would be meritorious is not a question before us. Id. at

1267.

        The magistrate judge found that there was no credible evidence that Mr.

Benoit had instructed his attorney to file an appeal. The district court upheld this

finding. We conclude that it is not clearly erroneous.

        In particular, the magistrate judge concluded, and our independent review

of the record confirms, that Mr. Benoit’s attorney never promised to appeal this

case in open court as Mr. Benoit’s sister indicated. Although Mr. Benoit claimed

to have asked his attorney to file an appeal, the magistrate judge concluded that

both Mr. Benoit and his sister were confusing this case with the previous case in

which Mr. Benoit pleaded guilty and was sentenced. That occurred less than

eight months prior to his sentencing in the instant case, and Mr. Benoit was

represented by the same attorney who had promised to file an appeal and did file

the appeal in that case. The magistrate judge’s credibility finding is entitled to

deference. See Nat’l Ref. Co. v. Wagner, 169 F.2d 43, 45 (10th Cir. 1948).

Because we conclude that the magistrate judge did not clearly err in finding that

                                          -6-
Mr. Benoit did not ask his attorney to file an appeal, his attorney was not

ineffective for failing to do so.

      Just as there is no evidence that Mr. Benoit instructed his attorney to file an

appeal, there also is no evidence that Mr. Benoit asked his attorney not to file an

appeal. Under such circumstances, we must consider whether the attorney

consulted with Mr. Benoit about an appeal. See Roe v. Flores-Ortega, 528 U.S.

470, 478 (2000). The record indicates that Mr. Benoit’s attorney could not

remember whether he spoke to Mr. Benoit and only offered information about

what he typically would advise a client in these circumstances. Accordingly, the

magistrate judge’s conclusion that Mr. Benoit’s attorney did not consult with him

is not clearly erroneous.

      When an attorney has not consulted with his client, the question then

becomes whether his failure to consult itself constitutes deficient performance. Id.

An attorney has a constitutionally-imposed duty to consult with his client when he

has reason to believe that a rational defendant would want to appeal or when he

has reason to believe that this particular defendant has demonstrated that he is

interested in appealing. Id. at 480. “Although not determinative, a highly relevant

factor . . . will be whether the conviction follows a trial or a guilty plea, both

because a guilty plea reduces the scope of potentially appealable issues and

because such a plea may indicate that the defendant seeks an end to judicial

proceedings.” Id. Other relevant factors include whether the defendant received

                                          -7-
the sentence that he bargained for, and whether the plea expressly reserved or

waived some or all appellate rights. Id. Ultimately, we must consider all of the

information the attorney knew or should have known. Id.

      The magistrate judge properly applied Flores-Ortega in concluding that the

failure to consult with Mr. Benoit was not constitutionally deficient. The record

indicates that Mr. Benoit pleaded guilty, significantly limited his appellate rights

in his plea agreement, and received a within-Guidelines sentence, which he

expressly acknowledged would be acceptable at his change of plea hearing.

Although Mr. Benoit had previously appealed after pleading guilty under a plea

agreement that contained an appellate waiver, he did so because his attorney

advised him that an appeal was where they would likely get relief because of

Blakely, which had been decided one month before Mr. Benoit was sentenced.

There is no evidence that the Blakely issue was even raised in relation to this case

or that Mr. Benoit’s attorney had any information that would lead him to believe

that a rational defendant, or Mr. Benoit in particular, would want to file an

appeal. Accordingly, his failure to consult with Mr. Benoit about an appeal was

not constitutionally deficient.




                                         -8-
     For the reasons stated above, Mr. Benoit’s request for a COA is DENIED,

his appeal is DISMISSED, and his counsel’s motion to withdraw is GRANTED.



                                   ENTERED FOR THE COURT


                                   Jerome A. Holmes
                                   Circuit Judge




                                     -9-
