Appellate Case: 23-1149 Document: 010111033036 Date Filed: 04/16/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 16, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-1149 (D.C. Nos. 1:23-CV-00029-RBJ & MICHAEL ROBERT STEVENS, 1:19-CR-00508-RBJ-1) (D. Colo.) Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, PHILLIPS, and ROSSMAN, Circuit Judges. _________________________________
Michael Robert Stevens appeals pro se from the district court’s denial of his
28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.1 This court
granted a certificate of appealability (COA) on the following issue: “Whether
Mr. Stevens’s claim that his counsel was constitutionally ineffective in failing to
appeal from his conviction and sentence after Mr. Stevens asked counsel to appeal
* 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 We liberally construe Mr. Stevens’s pro se filings but do not act as his advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). Appellate Case: 23-1149 Document: 010111033036 Date Filed: 04/16/2024 Page: 2
was timely asserted under § 2255(f).” Order Granting COA at 2. We now reverse
and remand for further proceedings.
Mr. Stevens was charged in a two-count indictment with being a convicted
felon knowingly in possession of a firearm and ammunition in violation of 18 U.S.C.
§ 922(g)(1); and with knowingly possessing an unregistered destructive device as
defined in 26 U.S.C. §§ 5845(a)(8) and (f), in violation of 26 U.S.C. § 5861(d). He
entered a “blind” plea to both charges (that is, a guilty plea without an agreement
with the government). On September 14, 2020, the district court sentenced him to
concurrent terms of 56 months on the two counts. The district court specified that its
sentence was to run concurrently to the sentence imposed in a state case, El Paso
County District Court Case No. 2018CR6615, and consecutively to El Paso County
District Court Nos. 2018CR3217 and 2018CR5269.2
Mr. Stevens did not appeal from the district court’s judgment. Over two years
later, on January 4, 2023, he filed his pro se § 2255 motion. The district court denied
the motion as untimely, without holding an evidentiary hearing.
BACKGROUND
Mr. Stevens’s § 2255 claims primarily asserted alleged sentencing-related
errors. But he also asserted that he asked his trial counsel “to file an appeal and
argue the issue at hand,” but his counsel had failed to do so. R., vol. 1 at 103.
2 Case No. 2018CR6615 was a DUI conviction arising from the same incident that was the subject of Mr. Stevens’ federal case. The other two state court convictions were for crimes committed prior to his conduct in the federal case.
2 Appellate Case: 23-1149 Document: 010111033036 Date Filed: 04/16/2024 Page: 3
Mr. Stevens explained that he had entered a blind plea to avoid the appeal
waiver typically included in a plea agreement with the government, but “[c]ounsel
failed to file anything on [his] behalf.” Id. at 104. He also asserted that because he
was incarcerated in a state facility, he had been unable to contact counsel to discuss
matters further. Id. He claimed it was only when he was moved to a federal facility
on July 25, 2022, and attempted once again to contact counsel, that he discovered his
trial counsel had retired from the practice of law without filing a notice of appeal.
The government moved to dismiss the § 2255 motion as untimely. See
§ 2255(f) (establishing a one-year limitations period for § 2255 motions).
Mr. Stevens responded by reasserting his ineffective assistance argument. He argued
his trial counsel had provided constitutionally ineffective assistance by failing to file
a notice of appeal as he had requested. Mr. Stevens further asserted that once he was
taken into state custody he was “unable to reach his Federal Public Defender . . . or
the public defender[’]s office [to check on the status of his federal case] because he
was in a State Facility.” R., vol. 1 at 119. After he was paroled from his state
sentence and held as a federal detainee, he was finally able to contact the federal
public defender. It was then he discovered that his counsel had retired.
As part of its analysis, the district court considered whether Mr. Stevens’s
motion was timely because he filed it within one year of the date on which he could
have discovered, through the exercise of due diligence, that his attorney had not filed
the appeal as he had instructed. See § 2255(f)(4). The court rejected this contention
for three reasons: (1) there was “no evidence, such as a writing of some kind, that
3 Appellate Case: 23-1149 Document: 010111033036 Date Filed: 04/16/2024 Page: 4
Mr. Stevens asked his public defender to file an appeal from his federal sentence,”
and it was unlikely that “a federal public defender, and in particular the individual
who was his lawyer at the time,” would have failed to do so if asked, R., vol. 1 at
130; (2) “it does not appear that there was a meritorious basis for an appeal,” id.; and
(3) Mr. Stevens’s discovery in July 2022 that an appeal was not filed did not
constitute a fact that could not have been discovered earlier through the exercise of
due diligence. The district court noted Mr. Stevens did not contact the public
defender’s office until more than 22 months after he was sentenced and “[e]ven then
there is no indication that he complained to that office that his former public defender
had failed to honor his request that an appeal be filed on his behalf,” id. at 131. But
the district court did not address Mr. Stevens’s contention that he was unable to
contact the federal public defender until he was returned to federal custody.
DISCUSSION
When a district denies a § 2255 motion without an evidentiary hearing, our
review is de novo. United States v. Baker, 49 F.4th 1348, 1354 (10th Cir. 2022).
The district court concluded no hearing was necessary on the timeliness issue.
We disagree. Because the district court did not hold a hearing, the record is
inadequate to determine (1) whether, when, and how Mr. Stevens asked his attorney
to file a notice of appeal, and (2) at what point Mr.
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Appellate Case: 23-1149 Document: 010111033036 Date Filed: 04/16/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 16, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-1149 (D.C. Nos. 1:23-CV-00029-RBJ & MICHAEL ROBERT STEVENS, 1:19-CR-00508-RBJ-1) (D. Colo.) Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, PHILLIPS, and ROSSMAN, Circuit Judges. _________________________________
Michael Robert Stevens appeals pro se from the district court’s denial of his
28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.1 This court
granted a certificate of appealability (COA) on the following issue: “Whether
Mr. Stevens’s claim that his counsel was constitutionally ineffective in failing to
appeal from his conviction and sentence after Mr. Stevens asked counsel to appeal
* 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. 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. 1 We liberally construe Mr. Stevens’s pro se filings but do not act as his advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). Appellate Case: 23-1149 Document: 010111033036 Date Filed: 04/16/2024 Page: 2
was timely asserted under § 2255(f).” Order Granting COA at 2. We now reverse
and remand for further proceedings.
Mr. Stevens was charged in a two-count indictment with being a convicted
felon knowingly in possession of a firearm and ammunition in violation of 18 U.S.C.
§ 922(g)(1); and with knowingly possessing an unregistered destructive device as
defined in 26 U.S.C. §§ 5845(a)(8) and (f), in violation of 26 U.S.C. § 5861(d). He
entered a “blind” plea to both charges (that is, a guilty plea without an agreement
with the government). On September 14, 2020, the district court sentenced him to
concurrent terms of 56 months on the two counts. The district court specified that its
sentence was to run concurrently to the sentence imposed in a state case, El Paso
County District Court Case No. 2018CR6615, and consecutively to El Paso County
District Court Nos. 2018CR3217 and 2018CR5269.2
Mr. Stevens did not appeal from the district court’s judgment. Over two years
later, on January 4, 2023, he filed his pro se § 2255 motion. The district court denied
the motion as untimely, without holding an evidentiary hearing.
BACKGROUND
Mr. Stevens’s § 2255 claims primarily asserted alleged sentencing-related
errors. But he also asserted that he asked his trial counsel “to file an appeal and
argue the issue at hand,” but his counsel had failed to do so. R., vol. 1 at 103.
2 Case No. 2018CR6615 was a DUI conviction arising from the same incident that was the subject of Mr. Stevens’ federal case. The other two state court convictions were for crimes committed prior to his conduct in the federal case.
2 Appellate Case: 23-1149 Document: 010111033036 Date Filed: 04/16/2024 Page: 3
Mr. Stevens explained that he had entered a blind plea to avoid the appeal
waiver typically included in a plea agreement with the government, but “[c]ounsel
failed to file anything on [his] behalf.” Id. at 104. He also asserted that because he
was incarcerated in a state facility, he had been unable to contact counsel to discuss
matters further. Id. He claimed it was only when he was moved to a federal facility
on July 25, 2022, and attempted once again to contact counsel, that he discovered his
trial counsel had retired from the practice of law without filing a notice of appeal.
The government moved to dismiss the § 2255 motion as untimely. See
§ 2255(f) (establishing a one-year limitations period for § 2255 motions).
Mr. Stevens responded by reasserting his ineffective assistance argument. He argued
his trial counsel had provided constitutionally ineffective assistance by failing to file
a notice of appeal as he had requested. Mr. Stevens further asserted that once he was
taken into state custody he was “unable to reach his Federal Public Defender . . . or
the public defender[’]s office [to check on the status of his federal case] because he
was in a State Facility.” R., vol. 1 at 119. After he was paroled from his state
sentence and held as a federal detainee, he was finally able to contact the federal
public defender. It was then he discovered that his counsel had retired.
As part of its analysis, the district court considered whether Mr. Stevens’s
motion was timely because he filed it within one year of the date on which he could
have discovered, through the exercise of due diligence, that his attorney had not filed
the appeal as he had instructed. See § 2255(f)(4). The court rejected this contention
for three reasons: (1) there was “no evidence, such as a writing of some kind, that
3 Appellate Case: 23-1149 Document: 010111033036 Date Filed: 04/16/2024 Page: 4
Mr. Stevens asked his public defender to file an appeal from his federal sentence,”
and it was unlikely that “a federal public defender, and in particular the individual
who was his lawyer at the time,” would have failed to do so if asked, R., vol. 1 at
130; (2) “it does not appear that there was a meritorious basis for an appeal,” id.; and
(3) Mr. Stevens’s discovery in July 2022 that an appeal was not filed did not
constitute a fact that could not have been discovered earlier through the exercise of
due diligence. The district court noted Mr. Stevens did not contact the public
defender’s office until more than 22 months after he was sentenced and “[e]ven then
there is no indication that he complained to that office that his former public defender
had failed to honor his request that an appeal be filed on his behalf,” id. at 131. But
the district court did not address Mr. Stevens’s contention that he was unable to
contact the federal public defender until he was returned to federal custody.
DISCUSSION
When a district denies a § 2255 motion without an evidentiary hearing, our
review is de novo. United States v. Baker, 49 F.4th 1348, 1354 (10th Cir. 2022).
The district court concluded no hearing was necessary on the timeliness issue.
We disagree. Because the district court did not hold a hearing, the record is
inadequate to determine (1) whether, when, and how Mr. Stevens asked his attorney
to file a notice of appeal, and (2) at what point Mr. Stevens could have discovered,
through the exercise of due diligence, that his attorney had failed to do so. See
United States v. Denny, 694 F.3d 1185, 1190 (10th Cir. 2012) (stating requirement
for reasonable diligence “depends on what one has notice of at that time”); see also
4 Appellate Case: 23-1149 Document: 010111033036 Date Filed: 04/16/2024 Page: 5
Wims v. United States, 225 F.3d 186, 190-91 (2d Cir. 2000) (date on which movant
could have discovered his attorney’s failure to file an appeal is a fact-specific
inquiry).
Among other things, Mr. Stevens asserts that he was unable reach his trial
counsel for reasons beyond his control. Without an adequate record on these issues,
it is not possible to determine whether Mr. Stevens’s ineffective assistance claim was
timely filed. A remand for further fact-finding is therefore required. See § 2255(b)
(“Unless the motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing
thereon . . . .”); see also, e.g., United States v. Garrett, 402 F.3d 1262, 1266-67
(10th Cir. 2005) (remanding for a hearing concerning whether counsel disregarded
movant’s requested to file a notice of appeal, even though movant pled guilty and his
plea agreement contained an appeal waiver).
CONCLUSION
We reverse the district court’s judgment and remand for further proceedings.
We grant Mr. Stevens’s motion for leave to proceed without prepayment of costs or
5 Appellate Case: 23-1149 Document: 010111033036 Date Filed: 04/16/2024 Page: 6
fees. To the extent Mr. Stevens seeks a COA on grounds other than the ground
addressed in this order and judgment, we deny a COA.3
Entered for the Court
Veronica S. Rossman Circuit Judge
3 Mr. Stevens’s equitable tolling argument relies in part on his attorney’s failure to file a notice of appeal and to communicate with him. Although we deny a COA on the equitable tolling issue at this juncture, we do not intend to foreclose reassertion of such an argument to the extent additional facts developed at a hearing might warrant relief under the doctrine of equitable tolling.