F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 6 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-5054
(D.C. No. 96-CV-417-K)
GARRY DUANE MCCALL, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
After examining the briefs, appellant’s statement of reasons for oral
argument, and the 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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant-appellant Garry Duane McCall appeals the district court’s denial
of his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. We affirm.
BACKGROUND
After Mr. McCall pled guilty to wire fraud and mail fraud, he was
sentenced to a term of imprisonment which reflected a four-level increase in
offense level for being an organizer or leader of a criminal activity that involved
five or more participants. See U.S.S.G. § 3B1.1(a). Mr. McCall did not file a
direct appeal. In his § 2255 motion, Mr. McCall alleged that he was deprived of
effective assistance of counsel by his appointed counsel’s failure to challenge the
validity of the enhancement or to perfect an appeal.
The district court determined that counsel was effective at sentencing, and
referred the issue of ineffective assistance on appeal to a magistrate judge for an
evidentiary hearing. A key exhibit before the magistrate judge was a document
which stated that Mr. McCall had been advised by his attorney of his “right to
appeal the judgment and sentence,” and that he did not wish to appeal. R. Vol. I,
Doc. 52, Ex. F. Both Mr. McCall and his former counsel testified that Mr. McCall
had signed the document four days after sentencing, following a discussion of
sentencing issues on appeal. Counsel stated that he believed the document
expressed Mr. McCall’s informed intention to forgo an appeal. Mr. McCall
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testified, however, that he was confused by the situation. Contrary to the wording
of the document, he had intended to waive his right to appeal the conviction, but
preserve his right to appeal the sentence.
The magistrate judge rejected Mr. McCall’s claim of confusion, finding
that, at the time he signed the document, he “voluntarily, knowingly, and
intelligently” waived his right to appeal both the conviction and the sentence. R.
Vol. I, Doc. 68 at 4-5. Accordingly, the magistrate judge concluded that Mr.
McCall had failed to show ineffective assistance of counsel on appeal and
recommended denial of the § 2255 motion.
Upon Mr. McCall’s objections to the magistrate judge’s report, the district
court conducted a de novo review of the record. The court noted the objections to
minor factual discrepancies in the report and determined that these alleged errors
did not affect the outcome. The district court agreed with the magistrate judge
that the absence of a direct appeal was the result of Mr. McCall’s decision, not
the fault of counsel, and denied the § 2255 motion in its entirety.
DISCUSSION
On appeal, Mr. McCall reasserts his argument that counsel’s failure to
perfect an appeal of the sentence amounted to ineffective assistance of counsel.
He also contends that, in accepting the magistrate judge’s recommendation, the
district court violated his due process rights by making credibility determinations
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without receiving live testimony. We review the district court’s finding on
ineffective assistance de novo, although we accept the district court’s factual
findings unless clearly erroneous. See United States v. Blackwell, 127 F.3d 947,
955 (10th Cir.1997).
As we have stated previously,
The Sixth Amendment’s guarantee of effective counsel requires that
counsel explain the advantages and disadvantages of an appeal,
advise the defendant as to whether there are meritorious grounds for
an appeal, and inquire whether the defendant wants to appeal his
conviction. Counsel retains these obligations unless defendant
executes a voluntary, knowing, and intelligent waiver of his right to
counsel on appeal.
Romero v. Tansy, 46 F.3d 1024, 1031 (10th Cir. 1995) (quotations and citations
omitted). The district court applied these principles to the record before it and
concluded that counsel’s conduct was entirely appropriate and not constitutionally
deficient. Mr. McCall has provided no reason for us to disturb this determination.
The court’s conclusion was based on the report and recommendation of the
magistrate judge, as well as its own de novo review of the record. By statute, the
district court may designate a magistrate judge to conduct hearings and submit
proposed findings of fact and recommendations for the disposition of, among
other things, “applications for posttrial relief made by individuals convicted of
criminal offenses.” 28 U.S.C. § 636(b)(1)(B). If a party files objections to the
magistrate judge’s credibility findings, as Mr. McCall did, the district court must
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undertake a de novo review of the record. Gee v. Estes, 829 F.2d 1005, 1008
(10th Cir. 1987). However, a de novo hearing, with live testimony, is not
required if the district court “adopts the recommendation of the magistrate.”
United States v. Orrego-Fernandez, 78 F.3d 1497, 1501 (10th Cir. 1996).
Here, the magistrate judge’s findings manifest his disbelief of Mr. McCall’s
testimony on his intent to appeal. In conducting its de novo review, the district
court accepted the magistrate judge’s explicit and implicit findings on credibility,
supported them with further citations to the hearing transcript, and adopted the
recommendation to deny the motion. Contrary to Mr. McCall’s contentions, this
is not the rare and “unlikely” case which raises due process concerns because a
district judge rejected “a magistrate’s proposed findings on credibility when those
findings are dispositive and substitute[s] the judge’s own appraisal . . . without
seeing and hearing the witness or witnesses whose credibility is in question.”
United States v. Raddatz, 447 U.S. 667, 681 n.7 (1980). The district court’s
determinations paralleled those of the magistrate judge, so that due process does
not compel a second evidentiary hearing. See Orrego-Fernandez, 78 F.3d at 1501.
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For the reasons stated above, the judgment of the United States District
Court for the Northern District of Oklahoma is AFFIRMED. The motion for
leave to file reply brief out of time is granted.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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