                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                       June 28, 2013
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 13-8011
          v.                                              (D. Wyo.)
 RONALD ENNIS,                              (D.C. Nos. 1:12-CV-00028-NDF and
                                                  2:10-CR-00118-NDF-2)
               Defendant - Appellant.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination

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

therefore ordered submitted without oral argument.

      Petitioner and appellant Ronald Ennis seeks a certificate of appealability

(“COA”) to enable him to appeal the denial of his 28 U.S.C. § 2255 motion to



      *
        This order is not binding precedent, except under the doctrines of law of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. 32.1.
vacate, set aside or correct his sentence. Having concluded that he fails to meet

the standard for the issuance of a COA, we deny him a COA and dismiss this

matter.



                                 BACKGROUND

      The following are the relevant facts, as stated in the various orders of the

district court. On May 10, 2010, a grand jury returned two drug trafficking

indictments against Mr. Ennis and others. The indictment in Case No.

10-CR-118-D (“Indictment 118”) alleged that Mr. Ennis was involved in a drug

trafficking enterprise with thirteen other individuals from January 2009 through

May 10, 2010. Specifically, this indictment charged Mr. Ennis with conspiracy to

traffic in methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and

(b)(1)(A); distribution or possession of methamphetamine with intent to

distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and (b)(1)(B); and use

of a telephone to facilitate a drug felony, in violation of 21 U.S.C. § 843(b). The

other indictment, involving Case No. 10-CR-134-D (“Indictment 134”), charged

Mr. Ennis with conspiracy to traffic methamphetamine between October 1, 2009,

and November 19, 2009, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)

and with unlawful distribution of methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A) and (b)(1)(B).




                                         -2-
      The indictments alleged that the two primary other individuals involved

with Mr. Ennis were Steve Bernal and William Breeden. Mr. Ennis assisted

Mr. Bernal and Mr. Breeden by traveling to Utah on multiple occasions to pick up

methamphetamine from their sources. Mr. Ennis, in turn, had other individuals

selling methamphetamine on his behalf. Apparently, the total amount of

methamphetamine attributed to Mr. Ennis was more than 900 grams.

      On September 16, 2012, Mr. Ennis signed a plea agreement in both cases.

Mr. Ennis agreed to plead guilty to count one of Indictment 118 (conspiracy to

possess with intent to distribute and distribution of methamphetamine), and to

count three of Indictment 134 (distribution of methamphetamine and aiding and

abetting). Mr. Ennis also agreed to forfeit $15,000. In return, the government

agreed to dismiss all remaining counts and to recommend a sentence at the low

end of the advisory United States Sentencing Commission, Guidelines Manual

(“USSG”).

      At his change of plea hearing, the district court placed Mr. Ennis under

oath and engaged in the colloquy required by Fed. R. Crim. P. 11. Mr. Ennis

stated that he had an adequate opportunity to discuss the charges with his attorney

and that his attorney had answered all of his questions regarding those charges

and had discussed possible defenses with him. Mr. Ennis also stated that he was

satisfied with the representation he had received from his counsel.




                                        -3-
      The court then explained the penalties which could result from a guilty

plea, and Mr. Ennis indicated his understanding, including his awareness of the

mandatory minimum penalty of ten years for one of the counts. The court

explained the Guidelines and the United States Probation Office’s assigned

officer indicated her belief that Mr. Ennis’s total adjusted offense level would be

37 with a criminal history category of III. This would result in an advisory

sentencing range of 262 to 327 months. Mr. Ennis indicated his awareness of all

of this information before he pled guilty.

      The court next explained the elements of the crimes; Mr. Ennis indicated

his understanding of those. He then described what he actually did with respect

to each count. Mr. Ennis subsequently pled guilty to each count. The plea

agreement did not contain any provision waiving Mr. Ennis’s right to appeal his

sentence.

      In preparation for sentencing under the Guidelines, the probation office

prepared a presentence report (“PSR”), which used relevant conduct to establish a

base offense level of 34. After reducing the offense level for acceptance of

responsibility, the PSR calculated Mr. Ennis’s total offense level as 31, which,

with a criminal history of V, yielded an advisory Guidelines sentencing range of

168 to 210 months.

      At his sentencing hearing, Mr. Ennis argued that the court should consider

a sentence below the minimum of 168 months. As grounds for this downward

                                         -4-
variance, Mr. Ennis argued his age (66 at the time) and his severe addiction to

methamphetamine. After listening to Mr. Ennis, the court varied downward three

levels to an offense level of 28 with an advisory range of 132 to 162 months. The

court then sentenced Mr. Ennis to 132 months’ imprisonment.

      Mr. Ennis subsequently filed this § 2255 motion. 1 On September 19, 2012,

the court entered an order partially denying the motion, appointing counsel for

Mr. Ennis and setting an evidentiary hearing on the single remaining issue of

whether he had asked his counsel to file an appeal and whether his counsel had

failed to file that appeal. After conducting the evidentiary hearing, at which

Mr. Ennis and his attorney testified, the district court issued its order denying

Mr. Ennis’s § 2255 motion on the remaining issue of ineffectiveness of counsel in

connection with an appeal. The court made the following findings:

             Through the presentation of evidence in this case, it is
      undisputed that Petitioner, despite contrary statements in his filings,
      never asked his trial counsel to file an appeal. Therefore, the issue
      before the Court is whether Petitioner’s counsel was constitutionally
      ineffective for failing to consult with him regarding an appeal. After
      hearing all the evidence, the Court finds that Petitioner failed to
      establish that either a rational defendant would want to appeal, or
      Petitioner reasonably demonstrated to counsel that he was interested
      in appealing. There is nothing in the record to indicate nonfrivolous

      1
        Apparently, Mr. Ennis himself filed a direct appeal, which our court
dismissed as untimely on March 1, 2012. But, in light of Mr. Ennis’s claim that
he had asked his attorney to file an appeal, we remanded the matter to the district
court to determine whether Mr. Ennis’s notice of appeal should be construed as a
§ 2255 motion. In any event, Mr. Ennis filed an actual § 2255 motion which
included the claim that his counsel was ineffective in failing to file a direct
appeal.

                                         -5-
      grounds for appeal, so the Court’s focus is on whether Petitioner
      reasonably indicated to his counsel that he was interested in
      appealing.

             While Petitioner is not required to ask for an appeal, there
      needs to be something in the record to establish that Petitioner
      reasonably indicated to his counsel that he was interested in
      appealing. At the hearing, there was no testimony from Petitioner
      demonstrating that he was interested in appealing. The fact that
      Petitioner raised concerns along the way regarding quantity and
      criminal history is not sufficient. In this case, Petitioner claims that
      at sentencing he stood there in shock, but there is a difference of
      opinion about whether that occurred. Petitioner’s counsel did not
      perceive Petitioner as being in shock. Petitioner received a
      significantly lower sentence than was indicated at his change of plea
      hearing. At his change of plea hearing his sentence was calculated at
      262-327 months and Petitioner received a sentence of 132 months.
      In reviewing the record, there was no time during the change of plea
      hearing or the sentencing hearing that Petitioner indicated any desire
      to pursue an appeal in this case. Additionally, Petitioner did not
      contact his counsel regarding an appeal for several months after
      sentencing. The record in this case is void of any evidence to
      establish that Petitioner’s trial counsel should have been aware of
      Petitioner’s desire for an appeal. For all these reasons, the Court
      finds that Petitioner is not entitled to the restoration of this appeal
      right.

Order at 7-9. Thus, after denying his § 2255 motion in its entirety, the district

court denied Mr. Ennis a COA, finding he had failed to make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

Mr. Ennis asks us for a COA to enable him to appeal this latest denial.




                                         -6-
                                   DISCUSSION

      A COA is a jurisdictional prerequisite to this court’s review of a § 2255

motion. 28 U.S.C. § 2253(c)(1)(B); see Allen v. Zavaras, 568 F.3d 1197, 1199

(10th Cir. 2009) (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). “We

will issue a COA only if the applicant has made a substantial showing of the

denial of a constitutional right.” Allen, 568 F.3d at 1199 (quoting 28 U.S.C.

§ 2253(c)(2)). In order to make such a showing, a prisoner must demonstrate

“that 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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (citation and internal quotation marks

omitted). Although he need not demonstrate that his appeal will succeed to be

entitled to a COA, a prisoner “must prove something more than absence of

frivolity or the existence of mere good faith.” Miller-El, 537 U.S. at 338

(quotations omitted). 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); see also United States v. Whalen, 976 F.2d 1346, 1347 (10th

Cir. 1992) (”We review the district court’s fact findings in a section 2255

proceeding under the clearly erroneous standard, although the performance and

prejudice prongs under Strickland [v. Washington, 466 U.S. 668 (1984)] involve

mixed questions of law and fact which we review de novo.”).

                                         -7-
      The sole issue facing us is whether Mr. Ennis’s defense counsel provided

“constitutionally ineffective representation when he failed to consult with his

client about taking a direct appeal from a sentence of 132 months[.]” Appellant’s

Op. Br. at 2.

      To prove that counsel was constitutionally ineffective, a defendant must

show (1) that counsel’s representation was deficient because it fell below an

objective standard of reasonableness under prevailing professional norms, and (2)

that counsel’s deficient performance prejudiced the defendant. See Strickland,

466 U.S. at 687-88. A defendant receives ineffective assistance of counsel if his

attorney disregards a specific instruction to take an appeal from a conviction or

sentence. See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). Indeed, “a lawyer

who fails to follow a defendant’s express instructions to file a notice of appeal

acts in a manner that is professionally unreasonable.” United States v. Garrett,

402 F.3d 1262, 1265 (10th Cir. 2005) (citing Roe, 528 U.S. at 477-78). In that

situation, a defendant is entitled to a belated appeal without showing that the

appeal would have merit. Peguero v. United States, 526 U.S. 23, 28 (1999);

United States v. Snitz, 342 F.3d 1154, 1155, 1159 (10th Cir. 2003). On the other

hand, “a defendant who explicitly tells his attorney not to file an appeal plainly

cannot later complain that, by following his instructions, his counsel performed

deficiently.” Flores-Ortega, 528 U.S. at 477.




                                         -8-
      Following the evidentiary hearing, the district court found that Mr. Ennis

never asked his trial counsel to file an appeal; but, he never asked his attorney not

to file an appeal, either. Those findings are not clearly erroneous. Thus, to

decide whether Mr. Ennis’s trial counsel’s representation fell below an objective

standard of reasonableness, we (as did the district court) apply the test used “[i]n

those cases where the defendant neither instructs counsel to file an appeal nor

asks that an appeal not be taken. . . .” Id. at 478. We first ask:

      whether counsel in fact consulted with the defendant about an appeal.
      We employ the term “consult” to convey a specific meaning–advising
      the defendant about the advantages and disadvantages of taking an
      appeal, and making a reasonable effort to discover the defendant’s
      wishes. If counsel has consulted with the defendant, the question of
      deficient performance is easily answered: Counsel performs in a
      professionally unreasonable manner only by failing to follow the
      defendant’s express instructions with respect to an appeal.

Id. (citation omitted). The district court found, correctly, that Mr. Ennis’s

counsel had not consulted with Mr. Ennis.

      Accordingly, when counsel has not consulted with the defendant, a court

must evaluate whether counsel had a duty to so consult, “tak[ing] into account all

the information counsel knew or should have known.” Id. at 480. The

constitutionally imposed duty to consult arises “when there is a reason to think

either (1) that a rational defendant would want to appeal (for example, because

there are non-frivolous grounds for appeal), or (2) that this particular defendant

reasonably demonstrated to counsel that he was interested in appealing.” Id.


                                          -9-
      The district court determined that there were no nonfrivolous grounds on

which Mr. Ennis could appeal; 2 therefore, the court was satisfied that no “rational

defendant would want to appeal.” Id. We note that the Supreme Court has stated

that “a highly relevant factor in this inquiry [of whether a rational defendant

would have wanted to appeal] 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. Mr. Ennis, of course, did plead guilty.

      Nonetheless, “[e]ven in cases when the defendant pleads guilty, the court

must consider such factors as whether the defendant received the sentence

bargained for as part of the plea and whether the plea expressly reserved or

waived some or all appeal rights.” Id. Here, Mr. Ennis received a lower sentence

than expected, and therefore got a better bargain. As another panel of our court

said (with which we agree), “[t]he fact that he pled guilty and received the

sentence bargained for weighs against an obligation on the part of his attorney to

consult with him regarding an appeal.” Pahcheka v. Ward, 143 Fed. Appx. 128,

133 (10th Cir. Aug. 2005) (unpublished).



      2
        As indicated, the district court rejected Mr. Ennis’s remaining arguments
for issuance of a § 2255 petition before conducting the evidentiary hearing on
counsel’s effectiveness. We fully agree with the district court’s dismissal of
those other arguments as meritless. They certainly do not present grounds for
issuance of a COA.

                                        -10-
      The district court accordingly turned to the final inquiry–“whether

Petitioner reasonably indicated to his counsel that he was interested in appealing.”

Order at 8. With respect to this issue, the court noted that Mr. Ennis claimed to

have stood “in shock” at his sentencing. The court stated that there “is a

difference of opinion about whether that occurred. Petitioner’s counsel did not

perceive Petitioner as being in shock.” Id. Furthermore, the court noted the

“significantly lower sentence [Mr. Ennis received] than was indicated at his

change of plea hearing.” Id. The court also specifically found, after “reviewing

the record, that there was no time during the change of plea hearing or the

sentencing hearing that Petitioner indicated any desire to pursue an appeal in this

case. Additionally, Petitioner did not contact his counsel regarding an appeal for

several months after sentencing.” Id. at 8-9. We find no error or room for

disagreement in the court’s review of the record in this case or its analysis. In

short, we fully agree that “[t]he record . . . is void of any evidence to establish

that Petitioner’s counsel should have been aware of Petitioner’s desire for an

appeal.” Id. at 9.

      If a defendant establishes that counsel had a duty to consult with him and

failed to do so, we would then consider the second part of the Strickland

test–prejudice stemming from counsel’s deficient performance. Flores-Ortega,

528 U.S. at 481. To demonstrate prejudice when counsel has failed to consult

with a defendant regarding an appeal, “a defendant must demonstrate that there is

                                          -11-
a reasonable probability that, but for counsel’s deficient failure to consult with

him about an appeal, he would timely have appealed.” Id. at 484. Because we

have found no grounds for issuance of a COA on the question of deficient

performance, we need not consider the second Strickland step of prejudice.



                                  CONCLUSION

      For the foregoing reasons, we DENY a COA and DISMISS this matter.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                         -12-
