We reversed and remanded to the district court with instructions to "undertake the appropriate inquiry and make the necessary findings to determine whether Mr. Baker had a duty to consult with Mr. Kelley and, if he did, whether his failure to do so prejudiced Mr. Kelley." United States v. Kelley, 253 Fed.Appx. 743, 745-46 (10th Cir. 2007). Although we expressed no opinion on the merits of the questions to be evaluated by the district court, we observed that the Supreme Court outlined the appropriate inquiry for analyzing these questions in Roe v. Flores-Ortega, 528 U.S. 470, 478-86, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).

February 19, 2010. Appeal from the Court of Appeals, Stephen H. Anderson, Circuit Judge, 253 Fed.Appx. 743, again reversed and remanded. On remand, the District Court, James H. Payne, J., 2007 WL 4287610.

Docket No. 2, at 2. See United States v. Kelley, 253 F. App'x 743, 745 (10th Cir. 2007) (finding no specific instruction to file an appeal where petitioner told counsel to "take care of everything"). Petitioner relies on United States v. Garrett, to argue that an evidentiary hearing is required to resolve this issue.

The Court, therefore, finds that the record does not support a finding that Defendant conveyed a specific instruction to his counsel to file a notice of appeal. See, e.g., United States v. Kelley, No. 07-7032, 253 Fed. Appx. 743, 745, 2007 WL 3230402 (10th Cir. Nov. 1, 2007) (explaining that Defendant's request that his counsel "'take care of everything' . . . does not constitute a specific instruction to file an appeal") (unpublished). For these reasons, the Court finds that Defendant's counsel's failure to consult with Defendant regarding filing an appeal does not constitute deficient performance and, therefore, fails to satisfy the first prong of Strickland.