                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 22, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 11-1061
 v.                                         (D.C. Nos. 1:06-CV-01975-REB and
                                               1:04-CR-00224-REB-MJW-1)
 NATHAN ERIC SCANLON,                                    (D. Colo.)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Defendant-Appellant Nathan Eric Scanlon, a federal prisoner represented

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

court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his

sentence. Because he has failed to make “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a COA and

dismiss the appeal. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).



                                    Background

      Mr. Scanlon pleaded guilty to receiving and distributing child pornography

in violation of 18 U.S.C. § 2252A(a)(2)(B) and criminal forfeiture under 18
U.S.C. § 2253 and was sentenced to 121 months’ imprisonment, a term at the

bottom end of the advisory guideline. United States v. Scanlon, No. 10-1135,

Order and Judgment, at 2 (10th Cir. June 22, 2010) (sealed document). Mr.

Scanlon never filed an appeal, but he did file a pro se motion to vacate, set aside

or correct his sentence pursuant to 28 U.S.C. § 2255, alleging eight claims for

relief. Id. at 2-3. The district court denied the motion, but we granted a COA

with respect to Mr. Scanlon’s claim that his trial counsel was ineffective for

failing to file a notice of appeal as requested by Mr. Scanlon. Id. at 3, 8. We

remanded the matter to the district court to resolve one issue of fact: whether Mr.

Scanlon directed trial counsel to file a notice of appeal on his behalf. Id. at 8.

We explained that “[i]f . . . the district court finds that Scanlon did not direct trial

counsel to file a notice of appeal, Scanlon’s request for § 2255 relief must be

denied.” Id.

      On remand, the district court held an evidentiary hearing where Mr.

Scanlon, his mother, and his former counsel testified. United States v. Scanlon,

No. 06-cv-01975-REB, 2011 WL 250668 (D. Colo. Jan. 26, 2011). The testimony

established that Mr. Scanlon and his former counsel had two conversations

regarding an appeal: a face-to-face conversation outside the courthouse shortly

after Mr. Scanlon had been sentenced and a telephone conversation a few days

after the sentencing. The parties disputed whether Mr. Scanlon directed his

counsel to file a notice of appeal. Mr. Scanlon testified that he told his counsel to

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appeal during both conversations. 5 R. 9-10. His mother, who was privy only to

the first conversation, testified that it was her understanding that the first

conversation was a request to appeal. Id. at 34. Mr. Scanlon’s former counsel

testified that he informed Mr. Scanlon that he would file an appeal if requested,

but that he did not think there was a good chance of winning, and that Mr.

Scanlon never asked him to appeal during either conversation. Id. at 44, 46, 47,

50. The district court noted inconsistencies in Mr. Scanlon’s and his mother’s

testimony and found Mr. Scanlon’s former counsel to be the most credible

witness. Scanlon, 2011 WL 250668, at *1, *3. The court concluded that

“Scanlon never requested or directed his attorney . . . to file an appeal” and

denied § 2255 relief. Id. at *6. The court later denied a COA. 4 R. 96.



                                      Discussion

      To establish ineffective assistance of counsel based on counsel’s failure to

file a notice of appeal, Mr. Scanlon must show that “counsel’s representation fell

below an objective standard of reasonableness” and that “counsel’s deficient

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

(internal quotation marks and citation omitted). Where trial counsel “consulted”

with the defendant about an appeal—meaning counsel advised the defendant

about the advantages and disadvantages of taking an appeal and made a

reasonable effort to discover the defendant’s wishes—he “performs in a

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professionally unreasonable manner only by failing to follow the defendant’s

express instructions with respect to an appeal.” Id. at 478.

      After the evidentiary hearing, the district court concluded that Mr. Scanlon

had not instructed his counsel to file a notice of appeal; thus, Mr. Scanlon could

not establish the factual predicate for his ineffective assistance claim. The

district court’s resolution of this matter is not reasonably debatable given the

standard of review we would be required to employ in evaluating its factual

finding: clear error. See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006).

Clearly, there were two permissible views of the evidence and the district court’s

finding cannot be clearly erroneous.

      To the extent Mr. Scanlon contends that the district court had a duty to

determine whether counsel had in fact “consulted” with him about the appeal, see

Aplt. Br. 21-22, we note that our prior panel opinion implicitly concluded that

counsel had “consulted” with Mr. Scanlon by limiting the scope of the remand to

the question of whether Mr. Scanlon directed his counsel to file a notice of appeal

and instructing the district court to dismiss the motion if it found that Mr. Scanlon

had not directed his counsel to appeal.

      Accordingly, we DENY a COA and DISMISS the appeal.


                                          Entered for the Court

                                          Paul J. Kelly, Jr.
                                          Circuit Judge

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