                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAY 20 1999
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                     No. 98-6271
           v.                                           (W.D. Oklahoma)
 JAVIER ORTIZ,                                      (D.C. No. CR-94-115-C)

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Javier Ortiz seeks a certificate of appealability which would permit him to

appeal the district court’s decision to deny his motion, filed pursuant to 28 U.S.C.


       This order and judgment is not binding precedent, except under the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.
§ 2255, to vacate, set aside, or correct his sentence. For the reasons set forth

below, we deny Ortiz’s request for a certificate of appealability, and dismiss his

appeal.



                                  BACKGROUND

      This case began when Ortiz’s wife, a soldier stationed at Fort Sill,

Oklahoma, was murdered in April 1994. At the time, Ortiz was attending

Cameron University in Lawton, Oklahoma, on a military scholarship. On

September 8, 1994, after a joint investigation by the Federal Bureau of

Investigation (FBI) and military officers, Ortiz and a co-defendant, Kevin Moore,

were charged with conspiracy to commit first degree murder, in violation of 18

U.S.C. § 1117, and with committing first degree murder, in violation of 18 U.S.C.

§§ 1111, 7, and 2. The government’s theory of the case was that Moore killed

Ortiz’s wife on instructions from Ortiz, as part of a plot to obtain the benefits

from the victim’s military life insurance policies. In October 1994, Ortiz’s co-

defendant, Moore, was convicted by a jury of first-degree murder and conspiracy

to commit first-degree murder.

      Even before the indictment against him was obtained, Ortiz sought private

legal representation. His family came up with the money to hire Mack Martin,

who represented himself to be one of the best defense attorneys in Oklahoma.


                                          -2-
Martin told Ortiz that his fee for pre-indictment representation would be $10,000.

Ortiz and his family paid this amount. After the indictment was issued, Martin

informed Ortiz that his fee for representation through trial would be another

$90,000. Ortiz and Martin entered into a contract for legal services, under which

Martin agreed to represent Ortiz through trial, and Ortiz agreed to pay the

$90,000. When this appeal began, Ortiz had paid Martin approximately $89,500

of the agreed-upon $100,000 legal fee.

      On December 7, 1994, after a motion to suppress evidence was denied by

the district court, Ortiz entered into a plea bargain with prosecutors. Under the

terms of the plea agreement, the government dismissed all of the outstanding

counts against Ortiz, and obtained a new indictment against him on the lesser

charge of solicitation of a crime of violence, a violation of 18 U.S.C. §§ 373(a)

and 7. Ortiz pled guilty to the lesser charge of solicitation.

      Some months later, without firing Martin, Ortiz hired another attorney and

filed a motion to withdraw his plea of guilty. However, on March 1, 1995, only a

few days after filing the motion to withdraw, Ortiz withdrew the motion. On

March 10, 1995, the district court held a sentencing hearing at which it sentenced

Ortiz to twenty years’ imprisonment, the statutory maximum. In addition, the

district court sentenced Ortiz to three years’ supervised release, and imposed a

fine. The district court entered judgment in the case on March 16, 1995.


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      Ortiz, who continues to maintain his innocence despite the guilty plea, did

not file a notice of appeal within the ten-day period following the entry of

judgment in his case. The reasons for this failure to mount a timely appeal

constitute the major issues of contention in this case.

      Finally, on February 10, 1997, Ortiz filed a notice of appeal. We dismissed

his appeal as untimely on May 21, 1997.     United States v. Ortiz , No. 97-6075, slip

op. (10th Cir. May 21, 1997);   see Supp. R. Tab 269.

      On March 10, 1997, Ortiz and his father filed a civil complaint in federal

court in Los Angeles, grounded in federal anti-racketeering law (RICO), against

attorney Martin and the other attorneys who had represented Ortiz in the criminal

case, United States District Judges Robin J. Cauthron and Wayne A. Alley, and

John and Jane Does 1-10, alleging a vast conspiracy to defraud Ortiz and his

family out of the $100,000 legal fee charged by Martin. In that action and in the

proceedings in this case before the district court below, Ortiz and his family

maintained that Martin had rendered sub-standard legal services, did not conduct

his own investigation of the events in question, and was generally overpaid for

the services he provided. The California district court dismissed the RICO

complaint in May 1997, and the Ninth Circuit affirmed the dismissal.     Ortiz v.

Martin , 1998 WL 479445 (9th Cir. July 24, 1998).




                                           -4-
      On April 21, 1997,   1
                               Ortiz filed a motion to vacate, set aside, or correct his

sentence, pursuant to 28 U.S.C. § 2255. In his motion, he asserted approximately

25 different grounds for relief. His chief complaints appeared to be ineffective

assistance of counsel, outrageous conduct on the part of the government, and lack

of jurisdiction over his criminal case. After filing his motion, Ortiz moved for an

evidentiary hearing, for appointment of counsel, and for recusal of district court

Judge Robin J. Cauthron on the ground that she was a named defendant in the

then-pending California civil case. The district court denied the motion for

recusal, but granted Ortiz’s motions for appointment of counsel and for an

evidentiary hearing.

      After several continuances, the evidentiary hearing was held on June 17,

1998. By this time, after appointment of counsel, the issues in the case had been

distilled to one major issue: whether attorney Martin had been constitutionally

ineffective for failing to mount a timely appeal. Martin asserted that he had

explained to Ortiz the advantages and disadvantages of mounting an appeal in this


      1
        The motion was signed by Ortiz on April 21. It was not filed with the
court, however, until April 30. We have held that petitioners whose convictions
become final on or before April 24, 1996, “must file their § 2255 motions before
April 24, 1997.” United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997).
However, under the doctrine of Houston v. Lack , 487 U.S. 266 (1988), a pro se
prisoner’s notice of appeal is deemed “filed” when it is delivered to prison
officials for forwarding to the district court. Because the government has not
raised any timeliness issues in this case, we presume that Ortiz delivered his
motion to the proper prison authorities in a timely manner.

                                             -5-
case, and that Ortiz had not asked Martin to file an appeal. Martin admitted that

there had been some discussion of an eventual § 2255 motion, but maintained that

Ortiz had never instructed him to mount a direct appeal. Ortiz, by contrast,

maintained that he had indeed asked Martin to file an appeal in his criminal case.

Thus, the district court’s task at the evidentiary hearing was to decide, after

hearing witness testimony and making credibility determinations, whether the

facts supported Martin’s or Ortiz’s version of the case.

      Martin and Ortiz both testified at the hearing. Ortiz also produced several

other witnesses, who testified, in essence, that Ortiz had told them that he planned

to appeal his conviction. None of the offered witnesses, however, could testify

that Martin had personally told them that a direct appeal was pending, or that they

had overheard Ortiz instruct Martin to file an appeal.

      At the conclusion of the hearing, the district court stated that it “believe[d]

Mr. Martin and [didn’t] believe Mr. Ortiz. And that [belief] is supported by

everything that has been submitted . . . .” III R. at 93. The district court further

found that “Mr. Martin fully explained the appeal rights to Mr. Ortiz as this case

proceeded” and that “at the entry of his plea and at the time of his sentence, [Mr.

Ortiz] was aware of his right to appeal and had declined it, had waived it, had

said no and had then had discussions with Mr. Martin regarding a future 2255

motion.” Id. at 93-94.


                                          -6-
       Two days after the hearing, on June 19, 1998, the district court filed a

written order documenting its findings at the hearing, and formally denying

Ortiz’s § 2255 motion. The court stated again that Martin’s testimony was more

believable than Ortiz’s, and was supported by “the circumstances of defendant’s

very favorable plea agreement, [and] the withdrawal of defendant’s motion to

withdraw plea.” I R. Tab 321, at 2. Judgment was entered in the case that same

day.

       Ortiz now appeals from the district court’s denial of his § 2255 motion.

Ortiz presents only one issue to us on appeal: whether Ortiz was denied his right

to effective assistance of counsel because Martin failed to mount a direct appeal.



                                     DISCUSSION

       “A defendant’s right to effective assistance of counsel applies not just at

trial but also on direct appeal.”   Romero v. Tansy , 46 F.3d 1024, 1030 (10th Cir.

1995) (citing Evitts v. Lucey , 469 U.S. 387, 396 (1985)). In order to prevail on a

claim of ineffective assistance of counsel, a defendant ordinarily must show that

(1) his attorney’s representation “‘fell below an objective standard of

reasonableness,’” and (2) “his counsel’s deficiencies were prejudicial to his

defense.” Romero , 46 F.3d at 1029 (quoting      Strickland v. Washington , 466 U.S.

668, 688 (1984)). However, where a petitioner claims that his attorney was


                                           -7-
ineffective for failing to mount an appeal, prejudice is presumed, and the

petitioner need only show that his counsel’s performance was objectively

unreasonable. See Abels v. Kaiser , 913 F.2d 821, 823 (10th Cir. 1990). Thus, the

only question we must consider is whether Martin’s performance in failing to

perfect Ortiz’s direct appeal was objectively unreasonable.

         We note that although the “ultimate question of whether a defendant

received ineffective assistance of counsel is an issue of law which we review de

novo,” we must give due deference to the district court’s findings of fact, and “we

review a district court’s factual findings based on live testimony presented at the

evidentiary hearing only for clear error.”    Romero , 46 F.3d at 1028.

         In the context of advising a client of appellate rights and mounting a direct

appeal, we have stated that an attorney’s performance is reasonable where the

attorney (1) “explain[s] the advantages and disadvantages of an appeal”; (2)

“provide[s] the defendant with advice about whether there are meritorious

grounds for appeal and about the probabilities of success”; and (3) “inquire[s]

whether the defendant wants to appeal the conviction; if that is the client’s wish,

counsel must perfect an appeal.”     Baker v. Kaiser , 929 F.2d 1495, 1499 (10th Cir.

1991).

         The district court found that Martin’s testimony that he had advised Ortiz

of his right to appeal, had discussed with him the merits of any such appeal, and


                                             -8-
that Ortiz at no time expressed to Martin a desire to mount a direct appeal was

highly credible and supported by other circumstances in the case. I R. Tab 321, at

2-3; III R. at 93-94. The district court’s determination that these events occurred

as Martin testified they did is a finding of fact to which we must defer. Ortiz

argues that “[a]n examination of the facts adduced at the evidentiary hearing show

the court’s finding was erroneous.” Appellant’s Br. at 12-13. We cannot agree.

       Martin directly testified that he advised Ortiz of his right to appeal and

discussed with him the merits of such an endeavor. III R. at 47-48, 50-53, 61.

Martin also stated that Ortiz, after having been advised of his rights and appellate

prospects, did not instruct him to mount a direct appeal of his convictions.    Id. at

43, 64. As indicated above, the district court stated that “at the entry of his plea

and at the time of his sentence, [Mr. Ortiz] was aware of his right to appeal and

had declined it, had waived it, had said no and had then had discussions with Mr.

Martin regarding a future 2255 motion.”       Id. at 94. Thus, the record provides

support for the district court’s findings of fact. Such supported findings are not

clearly erroneous.

       Thus, Martin met the standard articulated in     Baker v. Kaiser . His

performance was not constitutionally ineffective. He told Ortiz of his right to

appeal and that his appeal would likely not succeed. Armed with this

information, Ortiz chose not to instruct his attorney to file a direct appeal, but


                                            -9-
rather to wait and file a § 2255 motion. Under such circumstances, the attorney’s

performance was within reasonable limits.



                                 CONCLUSION

      For the foregoing reasons, we conclude that Ortiz has failed to make a

substantial showing of the denial of a constitutional right. Accordingly, we

DENY Ortiz’s request for a certificate of appealability and DISMISS his appeal.

                                              ENTERED FOR THE COURT



                                              Stephen H. Anderson
                                              Circuit Judge




                                       -10-
