Date: 12-24-2014

Case Style: United States of America v. Antonio Clark

Case Number: 13-3298

Judge: Timothy M. Tymkovich

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Kansas (Shawnee County)

Plaintiff's Attorney:

Defendant's Attorney:

Description: 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* This order is not binding precedent except under the doctrines of law of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.

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

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