                                                                           FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                    November 20, 2007
                             FOR THE TENTH CIRCUIT
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 07-7003
    v.                                           (D.C. Nos. 05-CV-374-JHP and
                                                        04-CR-11-JHP)
    ERNESTINE GOLDEN,                                     (E.D. Okla.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before TACHA, Chief Judge, McCONNELL and GORSUCH, Circuit Judges.


         Ernestine Golden, a federal prisoner, requests a certificate of appealability

(“COA”) to challenge the district court’s order denying her 28 U.S.C. § 2255

motion for sentencing relief. See 28 U.S.C. §§ 2253(c)(1)(B). We grant the

requested COA with respect to the limited question whether Ms. Golden’s trial

counsel was constitutionally deficient in failing to file a notice of appeal at her

request, and we remand the matter to the district court for further proceedings in


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
connection with this question. As for Ms. Golden’s various other arguments, we

find them insufficient to warrant a COA and thus dismiss the balance of her

appeal.

                                          I

      In January 2004, a federal grand jury indicted Ms. Golden for distribution

of methamphetamine, conspiracy to distribute methamphetamine, and possession

and distribution of listed chemicals. She pleaded guilty to the conspiracy count

on June 10, 2004. As part of the plea bargain, Ms. Golden agreed to waive all

rights to appeal or collaterally attack her sentence, so long as there was no

upward departure from the applicable range of the United States Sentencing

Guidelines.

      Two weeks later, on June 24, 2004, the Supreme Court issued Blakely v.

Washington, 542 U.S. 296 (2004). It appears that Ms. Golden’s counsel sought to

make use of Blakely at her sentencing hearing on September 8, 2004, objecting to

a base-offense level derived from a methamphetamine quantity that exceeded the

quantity to which she pleaded guilty. Aplt. App. at 11. The district court found

Blakely inapplicable and imposed a 168-month sentence, the bottom of the

applicable, then-mandatory Guidelines range. At the end of the proceedings, the

district court informed Ms. Golden that she had ten days to appeal her sentence.

A judgment of conviction was filed two days later. No appeal was taken.




                                         -2-
      A year later, on September 8, 2005, Ms. Golden filed a § 2255 motion in

the district court, arguing, among other things, that her former attorney was

ineffective for not moving to withdraw her guilty plea after Blakely was decided

and for not filing a direct appeal. The Government opposed the motion. 1 During

an evidentiary hearing, Ms. Golden testified that she had asked her counsel at

sentencing to appeal, that she believed he would file an appeal that same day, and

that afterward she wrote him two letters asking if he had filed the appeal. Aplt.

App. at 21. A copy of one of the letters, dated December 7, 2004, was produced

at the hearing. 2 Ms. Golden’s trial counsel testified that the first time he learned

that Ms. Golden wanted to appeal was when she wrote him in December – long

after the time to notice an appeal had expired. He also indicated that he did not

1
       The Government did not, however, oppose § 2255 relief on the basis of the
plea agreement’s waiver of “any post-conviction proceedings,” United States v.
Ms. Golden, No. CR-04-11-H, Doc. # 86 at 12 (plea agreement). Further, “a plea
agreement waiver of post-conviction 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.” United States v. Cockerham, 237 F.3d 1179,
1187 (10th Cir. 2001).
2
      In the December 7, 2004 letter, Ms. Golden wrote:

             I mailed you a letter about three weeks ago and ask [sic] you if
      you filed my appeal to reduce my sentence. We had ten days from
      the time I was sentenced to file it. I haven’t heard from you since
      the day of my sentencing. And I haven’t received anything showing
      that you filed the appeal. Would you please let me know if you filed
      it. I’ve never received an answer from my last letter to you. I need
      to know what is going on with my case.

Aplt. App. at 35.

                                          -3-
file an appeal in response to Ms. Golden’s letter because of the plea agreement’s

appeal-waiver provision. Aplt. App. at 25; see also Aplee. Br. at 10-11.

      The district court denied Ms. Golden’s § 2255 motion, ruling that her

counsel did not perform deficiently in regard to her plea; but the district court did

not render any findings or conclusions on Ms. Golden’s claim that her counsel

was ineffective for not appealing as requested. The district court also declined to

issue a COA. Ms. Golden now appeals, requesting a COA from us.

                                          II

      In order to obtain a COA to challenge the denial of her § 2255 motion, Ms.

Golden must make “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). She may make this showing “by demonstrating that

jurists of reason could disagree with the district court’s resolution of her

constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,

537 U.S. 322, 327 (2003). In aid of her request for a COA, Ms. Golden presses

three arguments. We address each in turn.

                                          A

      Ms. Golden first seeks a COA to challenge the conduct of her trial counsel.

Specifically, she contends that counsel’s failure to file a notice of appeal

constitutes a denial of her Sixth Amendment right to effective assistance of




                                          -4-
counsel. Because we believe Ms. Golden has made a substantial showing that her

constitutional rights were impaired, we grant a COA on this question.

      In Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), the Supreme Court

stated that “a lawyer who disregards specific instructions from the defendant to

file a notice of appeal acts in a manner that is professionally unreasonable,”

entitling the client to a delayed direct appeal. 3 Our precedent instructs that this

rule applies even if, as here, the defendant has waived her appellate rights in a

plea agreement. United States v. Garrett, 402 F.3d 1262, 1266-67 (10th Cir.

2005). We reached this result reasoning that, even in the presence of a waiver

provision in a plea agreement, there often still remains some appropriate bases for

appellate review. Id. (the waiver provision in that case did “not foreclose all

appellate review of [appellant’s] sentence”). Ms. Golden raised a Flores-Ortega

argument before the district court, see United States v. Ms. Golden, No. CV-05-

374, Doc. # 25 at 8, but the district court did not address the factual or legal bases

of her argument. Neither has the government done so in its appellate brief.




3
       But when “the defendant neither instructs counsel to file an appeal nor asks
that an appeal not be taken,” the question is whether counsel “advis[ed] the
defendant about the advantages and disadvantages of taking an appeal, and
ma[de] a reasonable effort to discover the defendant’s wishes.” Flores-Ortega,
528 U.S. at 478. See also Garrett, 402 F.3d at 1265 n.4 (“In the absence of a
consultation, the question becomes whether the failure to consult with the
defendant itself becomes deficient performance”) (internal quotation marks
omitted).

                                          -5-
Consequently, we reverse the district court’s order denying § 2255 relief and

remand this matter to the district court.

      On remand, the district court will still need to determine, by way of

example and without limitation, whether counsel notified Ms. Golden of her right

to appeal in a timely fashion and received a timely request to file a notice of

appeal. If counsel either failed to discuss with Ms. Golden her options in a timely

fashion, or failed to abide her request to file a timely notice of appeal, that may

lead the court to award appropriate relief. See supra note 3; Garrett, 402 F.3d at

1265-67. If counsel did inform Ms. Golden of her right to appeal in a timely

manner and Ms. Golden did not instruct counsel to file a notice of appeal until

after the deadline passed, that may lead the court in a different direction for we

cannot say that a lawyer engages in constitutionally deficient or prejudicial

practice by declining to file an impermissible notice of appeal in such

circumstances. Cf. Flores-Ortega, 528 U.S. at 484 (observing the “critical

requirement that counsel’s deficient performance must actually cause the

forfeiture of the defendant’s appeal”); Garrett, 402 F.3d at 1265 (holding that the

failure to file a timely notice of appeal is “professionally unreasonable” and

“presumptively prejudicial”); United States v. Hirsch, 207 F.3d 928, 931 (7th Cir.

2000) (indicating that a properly informed defendant who fails to timely request

an appeal “cannot change his mind and later blame his lawyer” for a tardy

appeal).

                                            -6-
                                          B

      Ms. Golden also seeks a COA to advance a claim that she made her plea

involuntarily and unknowingly as a result of additional deficiencies by her

counsel. She first argues that “[c]ompetent counsel should have foreseen the

ultimate holding in Blakely,” which was decided two weeks after her guilty plea,

Aplt. Br. at 7, and that counsel “should have immediately moved to withdraw her

plea based on Blakely’s ultimate impact on [her] sentencing,” id. at 8. “In

Blakely, the Supreme Court held that in a state prosecution the Sixth Amendment

requires that the maximum permissible sentence in a particular case must be

determined solely by reference to ‘facts reflected in the jury verdict or admitted

by the defendant.’” United States v. Wilson, 416 F.3d 1164, 1171 (10th Cir.

2005) (quoting Blakely, 542 U.S. at 303).

      Blakely, of course, concerned a state sentencing system and had no direct

impact on the federal Sentencing Guidelines. Thus, as far as we can tell, Ms.

Golden is actually faulting her counsel for not anticipating Blakely’s subsequent

extension by the Supreme Court in United States v. Booker, 543 U.S. 220 (2005),

to the Sentencing Guidelines, rendering the Guidelines advisory instead of

mandatory.

      To succeed on a claim of ineffective assistance, Ms. Golden must show that

her counsel performed deficiently and prejudiced the outcome of her case. See

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hill v. Lockhart,

                                         -7-
474 U.S. 52, 58-59 (1985) (ineffective assistance in the context of a guilty plea).

We conclude that Ms. Golden has failed to establish the initial prong of the

Strickland analysis. Specifically, she has not demonstrated deficient performance

in counsel’s failure to predict Booker’s extension of Blakely, which occurred

months after Ms. Golden’s conviction and sentence. “The Sixth Amendment does

not require counsel for a criminal defendant to be clairvoyant.” United States v.

Harms, 371 F.3d 1208, 1212 (10th Cir. 2004); cf. United States v.

Gonzalez-Huerta, 403 F.3d 727, 750 (10th Cir. 2005) (Briscoe, J. concurring and

dissenting) (“[I]t is safe to say that no one . . . could have predicted the absolute

sea-change in federal sentencing that would ultimately be wrought by the

Supreme Court in its Booker remedial holding.”). Moreover, Ms. Golden’s

counsel did assert a Blakely objection at sentencing, which was sufficient, under

our case law, to preserve a claim of Booker error in any direct appeal. See United

States v. Nash, 482 F.3d 1209, 1221 (10th Cir. 2007). 4

      Ms. Golden further argues that her counsel was ineffective because he

coerced her into pleading guilty and failed to mention that she suffered from

“numerous health related problems and was taking a laundry list of medications.”

Aplt. Br. at 16. But during the change of plea hearing, Ms. Golden specifically


4
      To the extent that Ms. Golden seeks a COA to challenge via § 2255 her
sentence as a violation of Booker, we note that Booker does not apply
retroactively to cases on collateral review. See United States v. Bellamy, 411
F.3d 1182, 1186-87 (10th Cir. 2005).

                                           -8-
informed the court that her plea was made voluntarily and that no one was forcing

her to plead guilty. We see nothing in the record inconsistent with a voluntary

decision to plead guilty. Likewise, Ms. Golden concedes that she was questioned

at the hearing about her medications and their effects. Id. at 17. Further, at the

hearing she clearly expressed her satisfaction with her counsel’s assistance.

Nothing in the transcript of that hearing or the transcript of the § 2255 evidentiary

hearing suggests that Ms. Golden’s counsel performed deficiently in bringing her

health problems and medications to the trial court’s attention.

      Accordingly, the district court’s conclusion that Ms. Golden counsel was

not ineffective in regard to the entry and maintenance of her guilty plea is not

reasonably debatable and we deny a COA on these ineffective assistance claims.

                                          C

      Finally, Ms. Golden cursorily argues that “she is not guilty of the crimes

charged” because she was unaware that she was in possession of

methamphetamine. Aplt. Br. at 6. To succeed on this argument, she must show

“that no reasonable juror would have found [her] guilty.” United States v.

Cervini, 379 F.3d 987, 991 (10th Cir. 2004) (quotation omitted). Because she has

identified nothing that would support her lack of awareness or otherwise

undermine the effect of her guilty plea, see United States v. Broce, 488 U.S. 563,

570 (1989) (“By entering a plea of guilty, the accused is not simply stating that




                                         -9-
[s]he did the discrete acts described in the indictment; [s]he is admitting guilt of a

substantive crime.”), we conclude that a COA on this issue is not warranted.

                                         ***

      We grant a COA on the question concerning Ms. Golden’s counsel’s failure

to file a direct appeal. As to that issue, we reverse the district court’s judgment

and remand the matter for further proceedings consistent with this order and

judgment. As for the remainder of Ms. Golden’s appeal, we deny a COA and

dismiss the appeal.

                                                      Entered for the Court


                                                      Neil M. Gorsuch
                                                      Circuit Judge




                                          -10-
