*This order and judgment is not binding precedent, except under the doctrines of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.

UNITED STATES COURT OF APPEALS

Filed 5/9/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 95-1470

v. D. Colorado

DONALD EDWARD SELF,

Defendant - Appellant.

(D.C. No. 94-K-2272) 

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and 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. This cause is therefore ordered

submitted without oral argument.

Donald Edward Self appeals the district court’s denial of his in forma pauperis pro

se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He
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contends that the district court abused its discretion in denying him an evidentiary hearing

on his § 2255 motion. We affirm. 

We review the district court’s denial of a request for a § 2255 hearing for abuse of

discretion. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); see also Dever v.

Kansas State Penitentiary, 36 F.3d 1531, 1535 (10th Cir. 1994) (distinguishing between

mandatory and discretionary hearings).

In his motion below, Self challenged his federal sentence enhancement for two

prior state court convictions, alleging that those prior convictions were constitutionally

defective. In support, Self filed an affidavit stating that he entered guilty pleas on the

state charges in exchange for the promise of concurrent sentences, and the promise was

breached when the court subsequently imposed consecutive sentences. R. Vol. I, Tab 8 at

3-4. This, he argues, invalidated his guilty pleas and rendered his convictions invalid. 

Id., Tab 9. 

The district court construed Self’s motion as a petition for a writ of habeas corpus,

concluding that Self’s current sentence enhancement satisfied the “‘in custody’

requirement for habeas review.” R. Vol. I, Tab 5 at 3-4 n.4. After fully reviewing the

state court record related to Self’s prior guilty plea, the district court made the following

findings:

The state court record shows plainly that Self was advised of the

rights he was waiving and that he understood those rights. . . . When asked

whether he was promised anything in exchange for his plea, Self responded

only that other charges against him would be dismissed. . . . At the [same
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hearing], the prosecutor informed the court that the state would “probably

ask for consecutive time” at sentencing. . . . Self’s attorney, . . . conceded

there was no “agreement” between his client and the state regarding

sentencing, and the judge made it clear to Self before Self entered his plea

that sentencing was a matter solely for the judge to decide regardless of any

requests made by the prosecution.

R. Vol. I, Tab 10 at 3-4 (citations to state court record omitted). Concluding that Self’s

conclusory and self-serving affidavit was insufficient to overcome the clear record made 

at the time Self entered his plea, the district court denied Self’s § 2255 motion and denied

Self’s request for an evidentiary hearing. Id.

The truth and accuracy of Self’s prior state court statements are conclusive in the

absence of a believable reason justifying their rejection. United States v. Bambulas, 571

F.2d 525 (1978). Notably, Self offered no reason to justify his failure to specify the

alleged agreement on concurrent sentences when the state court inquired whether he was

promised anything in exchange for his plea. Accordingly, since the motion, files, and

records conclusively show that Self was entitled to no relief, the district court did not

abuse its discretion in denying an evidentiary hearing. 28 U.S.C. § 2255; Hedman v.

United States, 527 F.2d 20, 22 (1975).

AFFIRMED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge