                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                      UNITED STATES CO URT O F APPEALS November 1, 2007

                            FO R TH E TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                     Clerk of Court



    U N ITED STA TES O F A M ER ICA,

                Respondent-Appellee,
                                                          No. 07-7032
    v.                                              (D.C. No. CIV-05-139-P)
                                                     (D.C. No. CR -03-51-P)
    K EN N ETH LEE K ELLEY ,                              (E.D. Okla.)

                Petitioner-A ppellant.



                             OR D ER AND JUDGM ENT *


Before KELLY, PO RFILIO, and A ND ER SO N, Circuit Judges.




         Kenneth Lee Kelley appeals the district court’s denial of his 28 U.S.C.

§ 2255 motion. W e previously granted M r. K elley a certificate of appealability.

W e have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). W e reverse and

remand for further proceedings.




*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                    Background

      M r. Kelley was charged in a superseding indictment with various drug and

weapons violations. In an oral plea agreement, M r. Kelley agreed to plead guilty

in exchange for the government’s dismissal of count three, which carried a

mandatory twenty-five year consecutive sentence. M r. Kelley was then sentenced

to thirty years in prison. He did not appeal his conviction or sentence.

      In April 2005, M r. Kelley filed a § 2255 motion alleging that his counsel

was constitutionally ineffective for failing to file an appeal of his sentence. The

district court held an evidentiary hearing and then denied the motion. M r. Kelley

appealed the decision, arguing that the district court should have appointed

counsel to represent him at the evidentiary hearing. See United States v. Kelley,

190 F. App’x 621, 622 (10th Cir. 2006). W e agreed with M r. Kelley and reversed

and remanded with instructions to the district court “to appoint counsel and

conduct further proceedings as warranted.” Id.

      On remand, the district court appointed counsel and conducted a second

evidentiary hearing. M r. Kelley, Donn Baker (M r. Kelley’s former counsel), and

Rebecca Wilson (M r. Kelley’s sister) testified. M r. Kelley testified that as he was

being led from the courtroom after sentencing he said to M r. Baker, “‘Are you

going to take care of everything?’ And [M r. Baker] said, ‘Yes.’” R. Vol. IV at

27. M r. Kelley intended that to mean he wanted M r. Baker to take care of his

appeal. Id. M r. Kelley did not speak with M r. Baker again after he was removed


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from the courtroom following sentencing. Id. at 27-28, 30. M r. Kelley testified

that he was relying on his family to communicate with M r. Baker. Id. at 30.

      M s. W ilson testified that she heard her brother ask M r. Baker, “‘Are you

going to take care of things?’” Id. at 11. She perceived that to mean that

M r. Baker w ould take care of her brother’s “things that a lawyer takes care of, his

court things. Appeal or whatever it was he needed to do.” Id. M s. W ilson

testified that she attempted to contact M r. Baker a few days later to discuss her

brother’s appeal, but M r. B aker was in trial and was not available until about tw o

weeks later. Id. at 13-14. According to M s. W ilson, she and her mother met with

M r. Baker a few weeks after sentencing and counsel told her that there was

nothing more he could do for her brother. She testified that he gave her a name

of another attorney, W arren Gotcher, w ho could help them file an appeal. Id. at

14, 20-21. Although she spoke with M r. Gotcher, she did not have the funds to

hire him. Id. at 15.

      M r. Baker testified that he did not disagree that M r. Kelley made “some

comm ent about are you going to take care of it, or do something like that. But the

word appeal was never–we never discussed appeal.” Id. at 7. According to

M r. Baker, he never spoke with M r. Kelley about an appeal at any time after

sentencing, but he did speak to some of M r. Kelley’s family members. He

explained that about four to six months after sentencing, M r. Kelley’s mother and

maybe his sister and father came to his office and wanted to know how


                                          -3-
M r. Kelley’s appeal was going and he said, “I don’t know–you know, what are

you talking about? There isn’t any appeal.” Id. at 9.

      After the hearing, the district court found that

      despite [M r. Kelley’s] allegations he asked M r. Baker “to take care
      of everything,” there is nothing in the record to support
      [M r. Kelley’s] allegations that he requested M r. Baker to file an
      appeal or that M r. Baker should have understood his statements to
      mean he wanted Baker to file an appeal.

Id. Vol. I, Doc. 31 at 6. The district court concluded that “[b]ased upon the

evidence before this Court, this Court finds counsel was not ineffective for failing

to timely file a notice of appeal. Rather, [M r. Kelley] did not timely request that

an appeal be filed by M r. Baker.” Id. at 7. The district court denied M r. Kelley’s

§ 2255 motion and this appeal followed.

                                     Discussion

      “[W]e review the district court’s legal rulings on a § 2255 motion de novo

and its findings of fact for clear error.” United States v. Pearce, 146 F.3d 771,

774 (10th Cir. 1998). In order to prove a claim for ineffective assistance of

counsel, a defendant must show “(1) that counsel’s representation fell below an

objective standard of reasonableness, and (2) that counsel’s deficient performance

prejudiced the defendant.” Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000)

(internal quotations and citations omitted). The Supreme Court has “long held

that a lawyer who disregards specific instructions from the defendant to file a

notice of appeal acts in a manner that is professionally unreasonable.” Id. at 477.


                                          -4-
Relying on this standard, M r. Kelley first argues that the district court’s decision

is clearly erroneous because he gave specific instructions to M r. Baker to file an

appeal, but that M r. Baker failed to file one. We agree with the district court,

however, that M r. Kelley’s request that M r. Baker “‘take care of everything,’”

R. Vol. IV at 27, does not constitute a specific instruction to file an appeal.

      But the inquiry does not end there. As the Supreme Court explained:

      In those cases where the defendant neither instructs counsel to file an
      appeal nor asks that an appeal not be taken, we believe the question
      whether counsel has performed deficiently by not filing a notice of
      appeal is best answ ered by first asking a separate, but antecedent,
      question: 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 not consulted
      with the defendant, the court must in turn ask a second, and
      subsidiary question: whether counsel’s failure to consult with the
      defendant itself constitutes deficient performance.

Flores-Ortega, 528 U.S. at 478. Based on this reasoning, M r. Kelley next argues

that the district court erred in denying his § 2255 motion because “the district

court’s order never addresses [] whether trial counsel was ineffective for not

consulting with [M r. Kelley] and determining [M r. Kelley’s] wishes regarding

appeal.” Aplt. Br. at 14-15. W e agree. The Flores-Ortega case outlines the

inquiry for analyzing the same type of claim that M r. Kelley presents here, see

528 U.S. at 478-486. As in Flores-Ortega, the district court failed to undertake

the appropriate inquiry and make the necessary findings to determine whether

M r. Baker had a duty to consult with M r. Kelley and, if he did, whether his failure

                                          -5-
to do so prejudiced M r. K elley. See id. at 487. Although we must remand under

these circumstances, we express no opinion with respect to the merits of the

question to be examined by the district court. The judgment of the district court

is REVERSED and REM ANDED for further proceedings consistent with this

decision.

                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




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