                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       April 10, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court


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

              Plaintiff - Appellee,
                                                         No. 06-3232
       v.                                                 D. Kansas
 JOSE M ACIAS,                                 (D.C. Nos. 04-CV-3051-JAR &
                                                    02-CR-40089-JAR)
              Defendant - Appellant.



            OR DER DENY ING CERTIFICATE O F APPEALABILITY
                       A N D DISM ISSING APPEAL


Before H E N RY, BR ISC OE, and O’BRIEN, 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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Jose M acias, a federal prisoner proceeding in form a pauperis (ifp), filed a

pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C.

§ 2255 alleging ineffective assistance of trial counsel. After appointing counsel

and holding an evidentiary hearing, the district court denied the motion. It also

denied M acias’ subsequent request for a certificate of appealability (COA).
M acias, still represented by counsel, has renewed his request for a COA in this

Court. Because M acias failed to make “a substantial showing of the denial of a

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

and dismiss the application.

                                   I. Background

      On July 17, 2002, M acias was indicted for (1) possession of approximately

503 grams of methamphetamine with intent to distribute in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(A) (Count I), (2) possession of three firearms in furtherance of

a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A) (Count II), (3)

possession of approximately five kilograms of marijuana with intent to distribute

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D) (Count III), (4) possession of a

firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. §

924(c)(1)(A), (C) (Count IV) and (5) possession of a firearm with a removed,

obliterated or altered serial number in violation of 18 U.S.C. § 922(k) (Count V).

M acias retained Henry Boaten to represent him. On November 4, 2002, he pled

guilty to Counts I-III and V . By accepting a plea agreement and pleading guilty,

M acias avoided the possibility of a mandatory consecutive 25 year sentence on

C ount IV . See 18 U.S.C. § 924(c)(1)(C).

      According to the plea agreement, in exchange for M acias’ guilty plea to

Counts I-III and V, the government agreed to recommend a three-level downward

adjustment for acceptance of responsibility. This obligation was contingent on

                                         -2-
M acias’ “continuing manifestation of acceptance of responsibility.” 1 (R. Vol. 1,

Doc. 31, Plea Agreement at 3.) The government also agreed not to seek an

upward departure. For his part, M acias agreed not to file a motion for downward

departure. He also waived his appellate and post-conviction rights but reserved

the right to appeal, directly or collaterally, “(1) an upward departure by the

sentencing judge; (2) a sentence in excess of the statutory maximum; or (3) a

sentence in violation of law apart from the Sentencing Guidelines.” (Id. at 5.)

      A presentence investigation report (PSR ) was prepared. 2 Based upon

1,007.81 kilograms of marijuana equivalent, M acias’ base offense level w as 32.

See USSG §2D1.1(a)(3), (c)(4). The probation officer recommended a two-level

enhancement for possession of a firearm (USSG §2D1.1(b)(1)) and a three-level

downward adjustment for acceptance of responsibility (USSG §3E1.1), resulting


      1
          Specifically, the plea agreement provided:

      The Government will recom mend that defendant receive a three-level
      adjustment for acceptance of responsibility; however, the government’s
      obligation to recommend acceptance of responsibility pursuant to this
      plea agreement is contingent upon the defendant’s continuing
      manifestation of acceptance of responsibility. Should the defendant
      deny his involvement, give conflicting statements as to his involvement
      or engage in additional criminal conduct, including, but not limited to,
      personal use of a controlled substance, the government shall not be
      bound to recommend acceptance of responsibility.

(R . Vol. 1, Doc. 31, Plea Agreement at 3.)
      2
        Because M acias was sentenced pursuant to the 2002 edition of the United
States Sentencing Guidelines M anual, all guideline citations refer to the 2002
edition, unless otherwise indicated.

                                          -3-
in a total offense level of 31. W ith a criminal history category of I, the guideline

range of imprisonment on Counts I, III and V was 108-135 months. However, the

guideline range for Counts III and V was limited to 60 months, the statutory

maximum. The guideline range for Count II was 60 months (the statutory

minimum), to run consecutive to the terms of imprisonment imposed on Counts I,

III and V. See USSG §2K2.4(b).

      The government objected to the three-level downward adjustment for

acceptance of responsibility, arguing inter alia M acias’ statement regarding

acceptance of responsibility minimized his conduct and failed to address the

elements of the crimes to which he pled guilty. W hile M acias’ statement

admitted he kept a bag of methamphetamine for someone else and officers found

drugs and guns in his house, it did not admit he possessed (1) any of the drugs

with intent to distribute, (2) any of the firearms in furtherance of a drug-

trafficking offense or (3) a firearm with an obliterated serial number. 3 M acias

      3
        Specifically, M acias’ attorney provided the following written statement to
the probation officer:

      I have lived at 1801 S.E. Hudson for about two months before the
      arrest. The house was rented to me by Antonio Beltran. Earlier on July
      12, 2002, an individual by the name of “Cholo” or M artin, brought a
      black duffel or gym bag containing the controlled substance for me to
      keep. He was supposed to come back and pick it up.

      On or about 19th and Hudson I was stopped by Topeka Police Officers
      who inquired about drugs in the vehicle I w as driving. I told them there
      were tw o joints in the ashtray. The officers seized the drugs and
      escorted me back to my house where police officers conducted a search

                                          -4-
responded, arguing he pled guilty to the elements of his offenses at the change of

plea hearing, his statement to the probation officer was clear and unequivocal in

that he admitted to possessing the drugs and weapons which formed the basis for

the charges against him and the fact he did not elaborate on the facts in his

statement did not mean he was not accepting responsibility for his actions. 4

      M acias also moved, despite recognizing his plea agreement obligation not



      and found additional drugs and w eapons.

(R . Vol. 6 at 9 (quotations omitted).)
      4
        In his COA application to this Court, M acias suggests, without raising it
as an issue, that the government’s failure to recommend an adjustment for
acceptance of responsibility constituted a breach of the plea agreement. M acias
never raised this issue with the district court, even as a basis for an ineffective
assistance of counsel claim, and does not specifically raise it as an issue in his
present request for a COA. Therefore, we need not consider it. Perry v.
Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999); Lyons v. Jefferson Bank &
Trust, 994 F.2d 716, 720 (10th Cir. 1993). W ere we to address the issue, we
would find no breach.
       To determine whether the government breached a plea agreement, we “1)
examine the nature of the promise; and 2) evaluate the promise in light of the
defendant’s reasonable understanding of the promise at the time of the guilty
plea.” U nited States v. Rodriguez-Delma, 456 F.3d 1246, 1250 (10th Cir. 2006)
(quotations omitted), cert. denied, 127 S.Ct. 1338 (2007). “General principles of
contract law define the government’s obligations under the agreement, looking to
the express language and construing any ambiguities against the government as
the drafter of the agreement.” Id. at 1250-51 (quotations omitted). The
government’s obligation to recommend an acceptance of responsibility adjustment
was contingent on M acias’ continuing manifestation of acceptance of
responsibility. Charitably considered, M acias’ statement to the probation officer
grossly minimizes his involvement; objectively considered, it amounts to an
outright denial of responsibility. The government did not consider it a continuing
manifestation of acceptance of responsibility; the probation officer agreed, as did
the district court, as do we.

                                          -5-
to, for a downward departure under USSG §5K2.0 based on the fact he had agreed

and tried to assist the government but it refused to talk with him. The

government argued such motion violated the plea agreement. It also alleged

M acias had two opportunities (at the time of his arrest and after his first

appearance) to provide substantial assistance to the government but refused. Only

after M acias’ motion to suppress was denied did he attempt to come forward with

information. By that time, law enforcement officers had obtained the information

they sought from M acias from other sources.

      In response to the parties’ objections, the probation officer amended the

presentence report to eliminate the three-level downward adjustment for

acceptance of responsibility. The officer also recommended denying M acias’

motion for downward departure. Under the amended PSR, M acias’ base offense

level was 34, resulting in a guideline range of 151-188 months imprisonment for

Count I. The recommendations for Counts II, III and V remained the same. The

district court adopted the probation officer’s new recommendations and sentenced

M acias to a total of 211 months. M acias did not file a direct appeal.

      On February 12, 2004, M acias filed a pro se motion to vacate, set aside or

correct sentence pursuant to 28 U.S.C. § 2255. He alleged his trial counsel was

ineffective at the motion to suppress and sentencing hearings. 5 On September 7,

      5
        Specifically, M acias alleged his counsel was ineffective for failing to: (1)
subpoena a witness for the motion to suppress hearing, (2) allow him to explain
for acceptance of responsibility purposes that he considered the small baggies of

                                          -6-
2004, M acias sought leave to amend/supplement his § 2255 motion to include an

ineffective assistance of counsel claim based on trial counsel’s failure to timely

file a notice of appeal as promised and to consult with him after his sentencing

concerning the advantages and disadvantages of an appeal. In response, the

government argued to the extent M acias’ ineffective assistance of counsel claims

did not relate to the validity of the plea or the plea agreement’s waiver provision,

they were barred by the w aiver. To the extent the w aiver did not bar M acias’

claims, the government asserted they were without merit. The district court

concluded an evidentiary hearing was necessary on the limited issue of whether

M acias’ counsel was ineffective for failing to file a notice of appeal and

appointed counsel for M acias. See Rule 8(c) of the Rules Governing Section

2255 Proceedings for the U nited States District Courts.

      On M arch 6 and 27, 2006, the district court conducted an evidentiary

hearing at which M acias, his mother and Boaten testified. On April 12, 2006, the

court issued an order denying M acias’ § 2255 motion. It concluded M acias’

ineffective assistance of counsel claims concerning counsel’s performance at the

motion to suppress and sentencing hearings fell within the plea agreement’s

waiver provision. As to his ineffective assistance of counsel claim based on


methamphetamine found in his house unmarketable and that he did not consider
the duffel bag of marijuana to be his property, and (3) object to (a) the separation
of the possession of marijuana and methamphetamine charges in the indictment,
(b) the consideration of drugs which were not intended to be distributed into the
calculation of his sentence and (c) the firearm enhancement under USSG §2D1.1.

                                         -7-
counsel’s failure to file a notice of appeal, the court determined Boaten was not

ineffective because M acias never asked Boaten to file an appeal and Boaten

neither ignored a request to file an appeal nor proposed to file an appeal on

M acias’ behalf. 6

       Thereafter, M acias filed a notice of appeal and a request for a COA limited

to whether trial counsel was ineffective for failing to file a notice of appeal. 7 H e

alleged the court failed to consider w hether Boaten was ineffective for failing to

consult with him after his sentencing concerning the advantages and

disadvantages of an appeal. The court denied M acias’ request for a COA. In

doing so, it considered and rejected the failure to consult argument, finding

Boaten had consulted with M acias about an appeal. M acias renews his request for

a COA with this Court.

                                    II. Discussion

       A COA is a jurisdictional pre-requisite to our review. M iller-El v.

Cockrell, 537 U .S. 322, 336 (2003). W e will issue a COA only if M acias makes a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. §


       6
        The district court construed M acias’ § 2255 motion to include a claim that
his sentence violated Blakely v. Washington, 542 U.S. 296 (2004). It concluded
the claim was w ithout merit because neither Blakely nor United States v. Booker,
543 U.S. 220 (2005), apply retroactively to initial motions under 28 U.S.C.
§ 2255. M acias does not seek a COA on this issue.
       7
        In his COA request, M acias conceded his ineffective assistance of counsel
claims concerning counsel’s performance at the motion to suppress and
sentencing hearings were barred by the plea agreement’s waiver provision.

                                          -8-
2253(c)(2). To make this showing, he must establish that “reasonable jurists

could debate whether . . . the petition should have been resolved [by the district

court] in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)

(quotations omitted).

      A plea agreement waiver of post-conviction rights is “generally enforceable

where the waiver is expressly stated in the [] agreement and where both the plea

and the waiver w ere knowingly and voluntarily made.” United States v.

Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). Exceptions to the general rule

include “where the agreement was involuntary or unknowing, where the court

relied on an impermissible factor such as race, or where the agreement is

otherwise unlawful.” Id. at 1182-83. M oreover, “a plea agreement waiver of

postconviction rights does not waive the right to bring a § 2255 petition based on

ineffective assistance of counsel claims challenging the validity of the plea or the

waiver. Collateral attacks based on ineffective assistance of counsel claims that

are characterized as falling outside that category are waivable.” Id. at 1187.

      M acias’ COA application is limited to arguing the district court erred in

finding Boaten was not ineffective for failing to consult with him after sentencing

concerning the advantages and disadvantages of an appeal. The district court

found this claim survived the plea agreement waiver of post-conviction rights and

addressed its merits. However, because this claim falls within the scope of the

                                         -9-
plea agreement’s waiver provision and does not relate to the validity of the plea

or w aiver, it too is barred. Id. at 1187; see also United States v. Davis, No. 06-

3289, 2007 W L 588326, at *2 (10th Cir. Feb. 27, 2007) (unpublished). 8 In any

event, it is without merit. 9

       An ineffective assistance of counsel claim requires a showing that (1)

“counsel’s performance was deficient” and (2) “the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

“[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.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). On the other hand,



       8
       Unpublished opinions are not binding precedent. W e mention Davis only
because of its persuasive value. See 10 TH C IR . R. A PP . P. 32.1(A).
       9
        In United States v. Garrett, Garrett’s plea agreement contained a waiver
of appeal. 402 F.3d 1262, 1263 (10th Cir. 2005). In his § 2255 motion, he
argued his counsel was ineffective for failing to file an appeal despite being
requested to do so. The district court dismissed the claim without an evidentiary
hearing, concluding the attorney could not be faulted for failing to file an appeal
when Garrett had expressly waived his appellate rights. W e concluded the court
should have conducted a hearing to determine whether Garrett had requested
counsel to file an appeal. Id. at 1266-67. In a footnote, we noted Garrett’s plea
agreement also contained a waiver of his right to collaterally challenge his guilty
plea or sentence. Id. at 1266 n.5. However, we did not enforce that waiver
because (1) the government had not argued the waiver barred Garrett’s § 2255
motion based on counsel’s failure to file an appeal and (2) the plain language of
the waiver did not address the claim. Id. Here, the government raised the waiver
issue. W e are satisfied the plea agreement permissibly waived M acias’
ineffective assistance of counsel claim based on counsel’s alleged failure to
consult. The district court seems to have read Garrett differently and addressed
the merits. Its merits analysis, while unnecessary, was correct.

                                          -10-
“a lawyer who disregards specific instructions from the defendant to file a notice

of appeal acts in a manner that is professionally unreasonable.” Id. In such

circumstances, the defendant is entitled to a new appeal, regardless of whether

such appeal would have merit. Garrett, 402 F.3d at 1265.

      Even when a defendant neither instructs counsel to file an appeal nor

requests that an appeal not be taken, counsel may be still be ineffective for failing

to file an appeal if he did not consult w ith the defendant about an appeal, i.e., if

he failed to “advis[e] the defendant about the advantages and disadvantages of

taking an appeal” and “mak[e] a reasonable effort to discover the defendant’s

wishes.” Roe, 528 U.S. at 478. “[C]ounsel has a constitutionally imposed duty to

consult with the defendant about an appeal when there is reason to think either (1)

that a rational defendant would want to appeal (for example, because there are

nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably

demonstrated to counsel that he was interested in appealing.” Id. at 480. In

making this determination, relevant factors include “whether the conviction

follows a trial or guilty plea” (“because a guilty plea reduces the scope of

potentially appealable issues and . . . may indicate that the defendant seeks an end

to judicial proceedings”), “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. In this case, the district court found (1) M acias did not

ask Boaten to file an appeal and (2) Boaten did not ignore a request to file an

                                          -11-
appeal or propose that an appeal be filed. These findings are not clearly

erroneous. United States v. M ora, 293 F.3d 1213, 1216 (10th Cir. 2002) (“In

reviewing the denial of a § 2255 motion, we review for clear error the district

court’s factual findings, and we review legal conclusions de novo.”).

      At the evidentiary hearing, M acias testified that immediately following his

sentencing hearing, he met with Boaten, who informed M acias he did not agree

with the sentence and stated they had one to two years to appeal it. M acias’

mother testified she spoke with Boaten after the sentencing hearing, using her

daughter as an interpreter. She asked Boaten what they could do and Boaten

responded they could appeal “within a year, three.” (R. Vol. 4 at 22.) Boaten

testified he visited with M acias concerning an appeal prior to his entering into the

plea agreement. He informed M acias that if he pled guilty and received a lawful

sentence, he could not appeal his conviction or sentence. After weighing the pros

and cons, M acias decided to plead guilty. Boaten also testified he did not recall

speaking with M acias about an appeal after sentencing, but he never informed

M acias he would be filing an appeal nor did M acias direct him to. He could not

recall any conversation with M acias’ mother or sister.

      W hile the testimony was conflicting, the district court resolved the conflict

in favor of Boaten. This finding is entitled to deference. See Nat’l Refining Co.

v. Wagner, 169 F.2d 43, 45 (10th Cir. 1948) (credibility of witnesses and weight

to be given their testimony are questions for the trial court; a trial judge observes

                                         -12-
the witnesses w hile testifying and is in a better position to judge their credibility

than is this Court). It is also adequately supported. As the court noted, M acias

has never claimed he explicitly asked Boaten to file an appeal. His claim has

always been that Boaten was particularly upset with the court’s denial of a three-

level downward departure for acceptance of responsibility, and told M acias he

would file an appeal but failed to do so. However, Boaten testified he explained

to M acias that if he chose to plead guilty, he would not be able to appeal. That is

why Boaten never discussed an appeal with M acias after sentencing — he knew

M acias had waived his right to appeal except in limited circumstances, none of

which applied. Further, both M acias and his mother testified Boaten told them

they had several years to file an appeal, which is not the applicable deadline

thereby calling the veracity of their testimony into question. Because M acias

never requested an appeal and Boaten never proposed filing an appeal, Boaten

was not ineffective for failing to file an appeal.

      W ith regard to the duty to consult, however, we conclude the district court

erred in finding Boaten consulted with M acias about an appeal after sentencing.

In support of this finding, the court stated: (1) under Roe, a finding that counsel

did not fail to follow the defendant’s express instructions with respect to an

appeal subsumes a finding that counsel consulted with the defendant, (2) Boaten

testified he spoke with M acias about how a guilty plea affected his right to appeal

his sentencing and (3) M acias’ testimony that he asked Boaten to file a notice of

                                          -13-
appeal necessarily suggests that Boaten consulted with him about an appeal. The

court’s finding is not supported by the record. W hile Boaten testified he

discussed with M acias the effect of a guilty plea on his appellate rights, there is

no evidence Boaten consulted with M acias after the sentencing hearing about the

advantages and disadvantages of an appeal. Indeed, Boaten testified he did not

recall talking to M acias about an appeal after the sentencing hearing. M oreover,

M acias never testified he asked Boaten to file an appeal; his claim has always

been that Boaten proposed filing an appeal on M acias’ behalf. Lastly, a finding

that Boaten did not fail to follow M acias’ express instructions with respect to an

appeal does not support an assumption that Boaten consulted with M acias’ about

an appeal, especially when the attorney concedes he did not consult with the

defendant. Even when a defendant does not instruct counsel to file an appeal,

counsel may be ineffective for failing to file an appeal if counsel had a duty to

consult w ith the defendant about an appeal and did not do so. Roe, 528 U.S. at

478.

       Despite the court’s error, we conclude Boaten’s failure to consult was not

constitutionally ineffective because there was no duty to consult in this case.

M acias’ conviction followed a guilty plea and he received the bargained-for

sentence. Although he did not receive the three-level downward adjustment for

acceptance of responsibility, this portion of the “bargain” was contingent on

M acias continuing to manifest an acceptance of responsibility, which he failed to

                                         -14-
do. W hile M acias may have “lost” on the acceptance of responsibility reduction,

he “gained” twenty-five years by entering into the plea agreement. He also

waived the right to appeal his sentence except in limited circumstances, none of

which occurred. These facts demonstrate Boaten had no reason to believe a

rational defendant would want to appeal and, more specifically, that M acias

would be interested in appealing the sentence he “bargained” for.

      Although the district court unnecessarily addressed issues raised by M acias,

it did so correctly. Its denial of his § 2255 motion is not reasonably debatable.

Slack, 529 U.S. at 484. W e DENY M acias’ request for a COA and DISM ISS the

application.




                                                ENTERED FOR THE COURT

                                                Terrence L. O’Brien
                                                Circuit Judge




                                         -15-
