United States v. Clark

FILED
United States Court of Appeals
Tenth Circuit

December 24, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 13-3298
(D. of Kan.)
ANTONIO CLARK, (D.C. Nos. 2:12-CV-02551-KHV and
2:10-CR-20076-KHV-12)
Defendant - Appellant.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges. **

Antonio Clark appeals the denial of his 28 U.S.C. § 2255 motion to vacate,

set aside, or correct his sentence. He argues that the district court erred in

rejecting his ineffective assistance of counsel claims and in relying on an

incomplete transcript of his change of plea hearing. Exercising jurisdiction under

28 U.S.C. §§ 1291 and 2253, we deny a certificate of appealability (COA) and

dismiss the appeal.

*
This order is not binding precedent except under the doctrines of law of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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
 I. Background

Clark was indicted on one count of conspiracy to distribute crack cocaine.

The government subsequently filed a motion providing notice that it would seek

an enhanced sentence based on a prior drug conviction. The enhancement

subjected Clark to a statutory mandatory minimum of 20 years’ imprisonment.

Clark signed a written plea agreement in which he agreed to plead guilty in

return for the government’s promise to (1) recommend a sentence at the low end

of the applicable guideline range, (2) recommend a reduction in offense level for

acceptance of responsibility, and (3) refrain from filing a second motion seeking a

double enhancement of his sentence based on a second prior drug conviction. A

double enhancement would have meant a statutory mandatory minimum of life in

prison. The plea agreement waived Clark’s right to appeal or collaterally attack

his sentence absent ineffective assistance of counsel, an upward departure from

the applicable guideline range, or an appeal first filed by the government. At the

change of plea hearing, the court conducted the Rule 11 colloquy and Clark

entered his plea of guilty.

Clark’s total offense level and criminal history category resulted in a

guideline range of 151 to 188 months’ imprisonment. As promised, the

government requested a low-end sentence, but the district court disagreed with the

recommendation and sentenced Clark to 170 months, still well below the

enhanced minimum’s 20 years. No direct appeal was ever filed.

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 Dissatisfied with the sentence, Clark filed a collateral proceeding in district

court alleging that his trial counsel was ineffective. He pointed to six instances

of ineffective assistance: Counsel (1) failed to conduct a pretrial investigation;

(2) coerced Clark into entering a plea agreement that did not benefit him;

(3) miscalculated the likely sentence Clark would receive; (4) negotiated the plea

despite having a conflict of interest; (5) failed to move for a downward departure

or to challenge the base offense level and the amount of drugs attributed to Clark;

and (6) failed to file a notice of appeal after being instructed to do so.

The district court found that, with the exception of Clark’s appeal claim,

the record conclusively established he was not entitled to relief. After appointing

Clark new counsel and holding an evidentiary hearing on the remaining issue, the

court entered an order rejecting the appeal claim and denying a COA on all of the

claims.

II. Discussion

A COA is a jurisdictional prerequisite to our review of a § 2255 motion.

Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009) (citing Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003)). “We will issue a COA only if the applicant

has made a substantial showing of the denial of a constitutional right.” Id.

(internal quotation marks omitted). To make the requisite showing, the applicant

must demonstrate “that reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or

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that the issues presented were adequate to deserve encouragement to proceed

further.” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 494 (2000)). In assessing

the applicant’s claims, “we review the district court’s legal conclusions de novo

and its factual findings under the clearly erroneous standard.” English v. Cody,

241 F.3d 1279, 1282 (10th Cir. 2001) (alteration omitted).

A. Transcript of the Change of Plea Hearing

Clark first alleges that the district court’s reliance on the transcript of the

change of plea hearing denied him his due process right to appeal. He claims the

transcript is materially incomplete and that, without a full transcript of the

proceedings below, he cannot properly pursue his appeal. He assigns two errors

flowing from the incomplete transcript: (1) any instance in which the district

court made a finding of fact based on the change of plea proceeding is clearly

erroneous; and (2) the gaps in the transcript denied him his due process right to an

accurate record of proceedings and meaningful post-conviction review.

“An elementary component of due process is the right to meaningful

appellate review,” which “necessarily means one is entitled to a reasonably

complete and accurate transcript, or an adequate substitute.” Witjaksono v.

Holder, 573 F.3d 968, 974 (10th Cir. 2009). Clark argues that the “errors in the

transcript are significant enough to require reversal in and of themselves as

significant omissions.” Aplt. Br. at 21–22. To obtain relief, however, Clark must

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do more than point out the transcription defects and label them significant. 1 He

“must show that the deficient transcript prejudiced his ability to perfect an

appeal.” Witjaksono, 573 F.3d at 974–75; see also Harden v. Maxwell, No. 00-

7032, 2000 WL 1208320, 229 F.3d 1163, at *1 (10th Cir. Aug. 25, 2000)

(unpublished table opinion) (collecting cases).

Clark makes no specific showing of prejudice. The testimony marked

inaudible was Clark’s own testimony. If Clark did in fact make material

statements during the colloquy that would undermine the district court’s reliance

on it, he is in the best position to say so. See Ortiz-Salas v. INS, 992 F.2d 105,

106 (7th Cir. 1993) (“A litigant who seeks reversal on the ground of a denial of

due process that is due to an inaccurate or incomplete transcript is . . . required to

make the best feasible showing he can that a complete and accurate transcript

would have changed the outcome of the case.”).

1
Clark relies on an Eleventh Circuit decision, United States v. Cashwell,
950 F.2d 699 (11th Cir. 1992), for his argument that the significance of the
omissions alone warrants reversal. Aplt. Br. at 20. The Fifth and Eleventh
Circuits follow a bifurcated approach in determining whether an incomplete
transcript necessitates reversal. See United States v. Preciado-Cordobas, 981
F.2d 1206, 1212 (11th Cir. 1993); United States v. Selva, 559 F.2d 1303, 1306
(5th Cir. 1977). If a defendant has new counsel on appeal and there are
substantial and significant omissions in the trial transcript, the defendant is
entitled to a new trial. If counsel remains the same on appeal, however, a new
trial is warranted only if the defendant can establish the transcript errors
prejudiced his ability to appeal. Clark urges us to apply the more lenient
substantial and significant omissions standard here. But we, along with the
majority of circuits, require an appellant to show the transcription errors
specifically prejudiced his ability to perfect an appeal, regardless of whether or
not appellate counsel is new. See United States v. Haber, 251 F.3d 881, 889
(10th Cir. 2001).

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 The Federal Rules of Appellate Procedure, moreover, provide a procedure

for this very situation. Rule 10 permits an omission in the record to be corrected

by stipulation of the parties, by the district court either before or after the record

has been forwarded, or by the court of appeals. See Fed. R. App. P. 10(e). There

is nothing in the record to indicate Clark attempted to fill the gaps in the

transcript when it seems he reasonably could have done so. See Witjaksono, 573

F.3d at 975–76; cf. United States v. Taverna, 348 F.3d 873, 880 (10th Cir. 2003).

And it is obvious from the transcript that many of the gaps were because Clark

communicated by physical movement, rather than speaking. It is also obvious

that the district court and parties at the change of plea proceeding understood

what was happening and no misperceptions arose from the colloquy. Nor have

the gaps in the transcript impaired our ability to conduct a meaningful review.

Thus, we cannot say Clark was prejudiced by the incomplete state of the

transcript.

We also disagree with Clark’s contention that the district court’s findings

of fact based on the change of plea hearing were clearly erroneous. “A finding of

fact is ‘clearly erroneous’ if it is without factual support in the record or if the

appellate court, after reviewing all the evidence, is left with a definite and firm

conviction that a mistake has been made.” United States v. Pulliam, 748 F.3d

967, 970 (10th Cir. 2014). We will “uphold any district court finding that is

permissible in light of the evidence.” Id.

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 The district court found Clark answered affirmatively the various questions

from the magistrate judge during the change of plea colloquy. See United States

v. Clark, No. 12–2551–KHV, 2013 WL 5314429, at *2, *4, *5 n.7 (D. Kan. Sept.

23, 2013) (“Clark I”). He conceded, among other things, that the government had

evidence that he committed the crime, that he reviewed the plea agreement with

counsel, and that his plea was free and voluntary. Clark argues that the missing

testimony renders it impossible for the district court to draw any conclusion as to

what was said at the hearing.

After a careful review of the transcript and viewing the inaudible testimony

in the context of the hearing as a whole, we are not “left with a definite and firm

conviction that a mistake has been made.” Pulliam, 748 F.3d at 970. First, it is

clear from the transcript when Clark did not provide a rote answer to the

magistrate judge’s questions. In those instances, the magistrate judge engaged in

a thorough follow-up until Clark understood and provided an answer that would

allow the colloquy to proceed. See, e.g., R., Vol. II at 13 (“I want to make sure

your answer is consistent with my question.”); id. at 19 (“Let me ask it a different

way.”). Second, the magistrate judge stated that Clark had answered all of his

questions. See id. at 43 (“Mr. Clark, having patiently answered my questions up

to this point . . . .”); id. at 47 (“Mr. Clark, I know I sound like a broken record

here, but I want to make sure you understand you have no obligation to plead

guilty this afternoon. But having answered all of my questions, it’s my

understanding that you still want to plead guilty to Count 1.”).

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 In sum, Clark has not shown a denial of due process flowing from the

record on appeal.

B. Ineffective Assistance of Counsel

Clark also takes issue with the district court’s reliance on the Rule 11

colloquy in denying his ineffective assistance of counsel claims. Clark seeks a

COA on three instances of ineffective assistance: (1) counsel’s inadequate pretrial

investigation, (2) counsel’s miscalculation of his likely sentence, 2 and

(3) counsel’s failure to file an appeal.

To establish that his representation was constitutionally deficient, Clark

must show the “representation fell below an objective standard of reasonableness”

and that it prejudiced him such that there exists “a reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985). The reasonable

probability standard “requires a substantial, not just conceivable, likelihood of a

2
Clark placed the sentencing claim under the more general heading,
“Counsel Was Ineffective In Conducting and Advising Mr. Clark regarding Plea
Negotiations.” Aplt. Br. at 25. Although Clark touched on the district court’s
denial of two of his other plea negotiation claims raised in his § 2255
motion—that counsel coerced him into pleading guilty and advised him to enter
an agreement that provided him no benefit—the brief does not go on to address
these claims in any detail. We find them waived. See Am. Airlines v.
Christensen, 967 F.2d 410, 415 n.8 (10th Cir. 1992) (“It is insufficient merely to
state in one’s brief that one is appealing an adverse ruling below without
advancing reasoned argument as to the grounds for appeal.”); Fed. R. App. P.
28(a)(8)(A) (“The appellant’s brief must contain . . . appellant’s contentions and
the reasons for them, with citations to the authorities and parts of the record on
which the appellant relies . . . .”).

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different result.” Cullen v. Pinholster, 131 S. Ct. 1338, 1403 (2011) (internal

quotation marks omitted).

1. The Investigation Claim

Clark first argues that counsel should have conducted an independent

investigation of the facts and should not have relied on the evidence provided by

the government. He criticizes counsel for not interviewing his co-defendants

because their proffers to the government regarding his involvement were

inherently biased.

Even assuming deficient performance, however, Clark has not shown how

his defense was prejudiced as a result of the alleged failure to investigate. See

Strickland v. Washington, 466 U.S. 668, 697 (1984) (“If it is easier to dispose of

an ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.”). Clark does not specify

what counsel would have learned from interviewing his co-defendants. The mere

speculation that doing so would have produced exculpatory evidence is not

sufficient to demonstrate prejudice.

Clark says prejudice is established by his statement that but for counsel’s

errors, he would have proceeded to trial. He contends that going to trial was a

genuine possibility, citing counsel’s statement in his affidavit that Clark

vacillated between pleading guilty and going to trial. As to Clark’s statement, we

have voiced our suspicion of “bald, post hoc and unsupported statements that a

defendant would have changed his plea absent counsel’s errors.” Heard v.

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Addison, 728 F.3d 1170, 1184 (10th Cir. 2013); see also Miller v. Champion, 262

F.3d 1066, 1072 (10th Cir. 2001) (“[A] petitioner’s mere allegation that he would

have insisted on trial but for his counsel’s errors, although necessary, is

ultimately insufficient to entitle him to relief.”). Counsel’s statement that Clark

considered going to trial, standing alone, is not enough to establish prejudice. As

the district court noted, “[i]n light of the evidence and the significant benefits

which defendant received under the plea agreement, defendant has not shown how

a decision to reject the plea agreement would have been rational under the

circumstances.” Clark I, 2013 WL 5314429, at *3 (citing Padilla v. Kentucky,

559 U.S. 356, 372 (2010)).

After our own review, we can discern no basis on which reasonable jurists

would find the district court’s assessment debatable or wrong. We therefore

decline to issue a COA on this claim.

2. The Sentencing Claim

Clark next alleges that counsel advised him he would receive a 120-month

sentence if he pleaded guilty. It is well established in this circuit that “[a]

miscalculation or erroneous sentence estimation by defense counsel is not a

constitutionally deficient performance rising to the level of ineffective assistance

of counsel.” United States v. Gordon, 4 F.3d 1567, 1570–71 (10th Cir. 1993); see

also United States v. Silva, 430 F.3d 1096, 1099 (10th Cir. 2005). Even assuming

counsel was deficient in advising Clark on the consequences of pleading guilty,

however, Clark again fails to demonstrate prejudice.

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 Clark had fair notice of the sentence he faced before he entered his plea. In

the plea petition, Clark stated that counsel had informed him “that the plea of

‘GUILTY’ could subject [him] to a mandatory minimum sentence of not less than

20 years.” R., Vol. I at 30. The petition also declared, “If anyone else, including

my attorney, made such a promise, suggestion, or prediction [regarding the

application of the Guidelines], . . . I know he had no authority to do so.” Id. at

31. The plea agreement Clark signed likewise stated that he faced a 20-year

sentence and that sentencing was solely in the court’s discretion. R., Vol. III at 4,

18. Moreover, it is clear, even from the incomplete transcript, that the magistrate

judge thoroughly explained the mechanics of sentencing to Clark in open court at

the change of plea hearing.

Clark again points to his statement that he would have proceeded to trial

but for counsel’s error and counsel’s statement that Clark vacillated in his

decision of whether to plead guilty. He also argues that his statements at

sentencing in which he expressed confusion as to why his sentence was calculated

based on the total amount of drugs attributed to the conspiracy and not just the

drugs for which he was responsible demonstrated that he would not have pleaded

guilty had counsel properly advised him. As we have already explained, we do

not ascribe any weight to Clark’s mere allegation that he would have proceeded to

trial. See Gordon, 4 F.3d at 1571. Given the numerous instances in which Clark

was informed of the sentence he faced before he entered his plea, we cannot say

his initial indecision over whether to proceed to trial or his subsequent confusion

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over the law of conspiracy demonstrates a reasonable probability that he would

have rejected the plea and proceeded to trial.

Accordingly, we find no reasonable jurists could debate the correctness of

the district court’s denial of the sentencing claim, and we decline to issue a COA

on this issue.

3. The Appeal Claim

Finally, Clark challenges counsel’s failure to appeal his sentence. The

district court credited counsel’s testimony at the evidentiary hearing that Clark

did not instruct him to file an appeal. Based on that finding, the district court

rejected Clark’s claim that counsel’s failure to file an appeal was constitutionally

deficient. We discern no clear error in the district court’s determination that

Clark did not request an appeal. Clark contends, however, that the district court

erred in its analysis. Even if he did not instruct counsel to file an appeal, he

argues the district court should have gone on to consider whether counsel had an

additional constitutional duty to consult with Clark regarding an appeal.

The Supreme Court’s opinion in Roe v. Flores-Ortega, 528 U.S. 470

(2000), guides the application of the Strickland test to claims that counsel was

ineffective in failing to file an appeal. If a defendant specifically instructs his

counsel to file an appeal and counsel disregards that instruction, he has acted in a

professionally unreasonable manner. Id. at 477. But if a defendant says nothing

to his counsel about an appeal, counsel’s conduct may still be constitutionally

deficient. In that scenario, we ask whether counsel in fact consulted with the

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defendant about an appeal, and if not, whether counsel had a constitutional duty

to do so. Id. at 478. Such a duty arises only “when there is reason to think either

(1) that a rational defendant would want to appeal . . ., or (2) that this particular

defendant reasonably demonstrated to counsel that he was interested in

appealing.” Id. at 480.

We do not fault the district court for not answering these questions because

Clark did not pose them. A careful review of Clark’s habeas petition and

subsequent filings reveals this theory of ineffectiveness simply was not raised

before the district court. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.

2008) (“Although we liberally construe pro se filings, we do not assume the role

of advocate.” (internal quotation marks omitted)). Arguments not raised before

the district court are forfeited, and although “we will entertain forfeited theories

on appeal, . . . we will reverse a district court’s judgment on the basis of a

forfeited theory only if failing to do so would entrench a plainly erroneous

result.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127–28 (10th Cir. 2011);

see also Fairchild v. Workman, 579 F.3d 1134, 1144 (10th Cir. 2009) (“[W]e

ordinarily do not decide issues raised for the first time on appeal.”). We discern

no plain error here.

Even considering, for the sake of argument, that by citing to Flores-Ortega,

Clark made the duty to consult argument before the district court, Clark has not

demonstrated his counsel performed deficiently or prejudicially. In Flores-

Ortega, the Supreme Court expressly rejected “a bright-line rule that counsel

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must always consult with the defendant regarding an appeal.” Flores-Ortega, 528

U.S. at 480. In doing so, the Court gave the following example: “suppose a

sentencing court’s instructions to a defendant about his appeal rights in a

particular case are so clear and informative as to substitute for counsel’s duty to

consult. In some cases, counsel might then reasonably decide that he need not

repeat that information.” Id. at 480–81; see also United States v. Parker, 720

F.3d 781, 785 n.3 (10th Cir. 2013) (noting that a “court’s clear explanation of

appeal rights to a defendant may substitute for counsel’s failure to consult”). The

Court went on to say that in deciding whether a duty existed, “a highly relevant

factor” is “whether the conviction follow[ed] a trial or a guilty plea, both because

a guilty plea reduces the scope of potentially appealable issues and because such a

plea may indicate that the defendant seeks an end to judicial proceedings.”

Flores-Ortega, 528 U.S. at 480. Other factors that tend to indicate no duty

include “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.

All of these factors point away from finding a duty existed in Clark’s case.

Clark’s conviction followed a guilty plea entered pursuant to a plea agreement

that waived all of his appellate rights with three limited exceptions. Moreover,

the district court found that Clark was well aware of the limited nature of his

appeal rights. Specifically, the court noted the “thorough explanation” of the

appeal waiver at the change of plea hearing, the “explicit terms” contained in the

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plea agreement regarding his ability to appeal, and counsel’s testimony at the

evidentiary hearing that he discussed the terms of the plea agreement with Clark. 3

See United States v. Clark, No. 10–20076–12–KHV, 2013 WL 6050160, at *1 (D.

Kan. Nov. 15, 2013) (“Clark II”).

For all of these reasons, we find Clark has failed to make “a substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and we

deny a COA on his appeal claim.

C. Evidentiary Hearing

Clark also argues that the district court erred in only holding an evidentiary

hearing on the appeal claim. We review a district court’s denial of an evidentiary

hearing under the deferential abuse of discretion standard. Anderson v. Attorney

Gen. of Kan., 425 F.3d 853, 858 (10th Cir. 2005). “In response to a § 2255

motion, the district court must hold an evidentiary hearing on the prisoner’s

claims unless the motion and files and records of the case conclusively show that

the prisoner is entitled to no relief.” United States v. Lopez, 100 F.3d 113, 119

(10th Cir. 1996) (internal quotation marks and alteration omitted).

3
This court has previously found a defendant’s “apparent decision about
an appeal [was] made manifest in the plea agreement where his right to appeal
(and to collaterally attack the conviction or sentence) was waived by clear and
understandable language” and that the defendant’s “informed decision about the
waiver was confirmed by the trial judge during the guilty plea colloquy.” Parker,
720 F.3d at 785 n.3.

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 For reasons already discussed, the record conclusively showed Clark was

not entitled to relief on his other ineffective assistance theories. Accordingly, the

district court did not abuse its discretion, and we deny a COA on this issue.

III. Conclusion

For the foregoing reasons, we DENY a COA and DISMISS the appeal.

Entered for the Court,

Timothy M. Tymkovich
Circuit Judge

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