United States v. Fowler , 525 F. App'x 839 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT May 29, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
No. 12-1398
v. (D.C. No. 1:10-CR-00311-DME-1 and
1:11-CV-01536-DME)
LESTER EUGENE FOWLER, (D. Colo.)
Defendant-Appellant.
ORDER DENYING
CERTIFICATE OF APPEALABILITY
Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges.
Lester Eugene Fowler, a federal prisoner proceeding in forma pauperis, wants to
appeal from the denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his
sentence. His petition is based upon alleged ineffectiveness of trial counsel. Principally,
he claims counsel failed to file an appeal as he requested. After a hearing the district
judge, crediting the testimony of trial counsel over that of Fowler, found the evidence
insufficient to support Fowler’s claim to have requested an appeal and denied the motion.
No request for a Certificate of Appealability (COA) was made to the district judge.
Instead, Fowler’s appointed counsel filed a notice of appeal with the district court and an
Anders brief with this Court, which we deem an application for a COA.1 See 28 U.S.C. §
2253(c)(1)(B); Fed. R. App. P. 22(b)(1) & (2). Because Fowler has not “made a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we
deny a COA.
Under a plea agreement, Fowler pled guilty to one count of bank robbery in
violation of 18 U.S.C. § 2113(a) and the government agreed to drop four other charges.
The plea agreement contemplated a recommended guideline sentence of 51-63 months
imprisonment, but explicitly stated the computation was tentative and could change upon
subsequent information. The pre-sentence investigation uncovered an additional
conviction for misdemeanor shoplifting, which increased Fowler’s recommended
sentence to 63-78 months imprisonment. He was sentenced to 70 months imprisonment.
No direct appeal was taken.
Fowler, proceeding pro se, filed a § 2255 motion raising two claims of ineffective
of assistance of counsel. He claims his trial attorney was ineffective for failing to
challenge the consideration of the additional conviction because he was not represented
by counsel when he pled guilty. He also claims his counsel ignored his request to file an
appeal on this issue.
1
“A request [for a COA] addressed to the court of appeals may be considered by
a circuit judge or judges, as the court prescribes. If no express request for a certificate is
filed, the notice of appeal constitutes a request addressed to the judges of the court of
appeals.” Fed. R. App. P. 22(b)(2).
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The district judge determined Fowler’s unrepresented conviction could be
considered for sentencing purposes. See United States v. Jackson, 493 F.3d 1179, 1187
(10th Cir. 2007) (when the right to counsel was not afforded in a misdemeanor state
conviction, the district court must disregard any jail sentence, but is “free to consider the
conviction itself and accompanying fine in assessing an appropriately tailored sentence”
in a subsequent federal conviction). Counsel was not ineffective for failing to object.
However, the judge appointed counsel for Fowler and held an evidentiary hearing
to determine whether Fowler had requested an appeal, as he swore in his affidavit, or
whether he specifically said he did not want to appeal, as his trial attorney averred.2 The
judge found the testimony of trial counsel to be credible and concluded Fowler’s
evidence failed to prove he requested an appeal.
Fowler’s appointed § 2255 counsel filed an Anders brief.3 Although twice given
notice and an opportunity to respond to the Anders brief, Fowler did not. The
government did not file a brief.
2
An ineffective assistance of counsel claim based on the failure to file a requested
appeal is governed by the Supreme Court’s decision in Roe v. Flores-Ortega, 528 U.S.
470 (2000). “[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). “And, if
counsel does not ‘file a requested appeal, a defendant is entitled to [a new] appeal without
a showing that his appeal likely would have had merit.’” Id. (quoting Roe, 528 U.S. at
477).
3
In Anders, the Supreme Court held that if appointed counsel “finds his case to be
wholly frivolous, after a conscientious examination of it, he should so advise the court
and request permission to withdraw.” Anders v. California, 386 U.S. 738, 744 (1967).
Counsel must submit to the court a brief “referring to anything in the record that might
arguably support the appeal.” Id. When counsel submits an Anders brief accompanied
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A COA is a jurisdictional pre-requisite to our review. Miller–El v. Cockrell, 537
U.S. 322, 336 (2003). One may issue only if Fowler makes a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 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. McDaniel, 529 U.S.
473, 484 (2000) (quotation marks omitted). We review the district judge’s factual
findings for clear error and its legal conclusions de novo. English v. Cody, 241 F.3d
1279, 1282 (10th Cir. 2001).
As required by Anders, we have conducted a full examination of the record. See
Anders, 386 U.S. at 744. It fully supports the judge’s factual findings and legal
conclusions. As the propriety of the decision is not reasonably debatable, a COA may
not issue. Slack, 529 U.S. at 484.
We DENY a COA and DISMISS the application.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
by a motion to withdraw, we “conduct a full examination of the record to determine
whether defendant’s claims are wholly frivolous.” United States v. Calderon, 428 F.3d
928, 930 (10th Cir. 2005). If we concur in counsel’s evaluation of the case, we may grant
the request to withdraw and dismiss the appeal. Anders, 386 U.S. at 744.
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