* This order and judgment is not binding precedent except under the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 judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 10 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RICKY WALLGREN, Defendant - Appellant. No. 02-6107 D.C. No. CIV-98-1607-M & CR-97-85-M (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Ricky Wallgren files for a certificate of appealabi lity complaining of the district court’s denial of his motion for sentencin g relief under 28 U.S.C. § 2255.-2-

He asserts ineffective assistance of counsel and improper sentencing. As to the latter, he claims the court incorrectly relied on m aterially false information and his immunized testimony which, under the terms of h is plea agreement, could not be used against him. He also asserts the district court erred by failing to conduct a hearing on his motion. Mr. Wallgren pled guilty on June 12, 1997, to a vio lation of 21 U.S.C. § 841(a)(1), manufacturing methamphetamine with inten t to distribute. He was sentenced to 235 months imprisonment, five years supervised release, and a $100 special assessment. He filed no direct appeal. In stead, he petitioned the district court for post-conviction relief, which the court c onsidered without a hearing and denied in a comprehensive order on March 1, 2002. He then applied to the district court for a certificate of appealability, which was deemed denied when not acted upon within thirty days of filing his notice of appeal, U.S. v. Kennedy, 225 F.3d 1187, 1193 n.3 (10th Cir. 2000), cert. denied, 532 U.S. 943 (2001). His notice of appeal to this Court constitutes a renewe d request for a certificate of appealability. Fed. R. App. P. 22(b)(2). Exercisi ng jurisdiction under 28 U.S.C. § 2253, we see no basis for an appeal and deny his request. Mr. Wallgren must make a substantial showing of the denial of a constitutional right entitling him to a certificate of appealability. 28 U.S.C. §1 28 U.S.C. § 2255 reads in pertinent part: “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 . . . .” -3- 2253(c)(2). He must demonstrate that “reasonable j urists could debate whether . . . the issues presented [are] adequate to deserve en couragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks and citation omitted). We review the denial of an evid entiary hearing on a 28 U.S.C. § 2255 petition for abuse of discretion. U.S. v. Whalen , 976 F.2d 1346, 1348 (10th Cir. 1992). Exercising its discretion and relying on 28 U.S.C. § 2255, 1 the district court denied the petition without conducting an evidentia ry hearing. See also Kennedy , 225 F.3d at 1193. The district court followed the “preferred practice” we described in United States v. Marr, 856 F.2d 1471, 1472-73 (10th Cir. 1988), to thoroughly set out its reasoning in aid of appellat e review. Because all of Mr. Wallgren’s allegations were capable of review from the record of the proceedings alone, the district court did not abuse its discret ion in denying an evidentiary hearing. Cf. Machibroda v. United States, 368 U.S. 487, 494-95 (1962) (upholding the right to an evidentiary hearing in a28 U.S.C. § 2255 case where the allegations related to matters outside the reco rd). In reviewing this application for a certificate of appealability, we treat all issues raised by Mr. Wallgren as constituent parts of his general allegation of-4-

ineffective assistance of counsel even though not a lways so framed. Effectiveness of counsel is determined by applying a two part tes t: (1) counsel must have committed errors so serious as to fall outside the kind of functioning required by the Sixth Amendment, and (2) the defendant must sho w the deficient performance prejudiced the defense in such a fashion as to call into question the reliability of the proceedings. Strickland v. Washington, 466 U.S. 668, 687 (1984). We will not indulge hindsight in evaluating counsel’s effective ness, but will apply “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” and sound trial strategy. Strickland, 466 U.S. at 689. Mr. Wallgren complains his trial attorney failed to review with him the contents and importance of the Presentence Investig ation Report. As a consequence, Mr. Wallgren believes he was unable to inform his attorney of underlying facts and circumstances that would have enabled his attorney to effectively challenge the calculation of his senten ce. According to his attorney, however, he and Mr. Wallgren did review the report and adopted a strategy calculated to obtain the greatest benefit from an e xpected government motion for downward departure from the sentencing guidelines b ased upon his cooperation with authorities. According to the attorney’s swor n affidavit, the plan was for Mr. Wallgren to accept responsibility and not contest i mmaterial inaccuracies in the report.-5-

The Presentence Investigation Report is replete wit h prima facie evidence to support the debit and credit points attributed to M r. Wallgren and requires no further discussion. If there were material inaccur acies in the report leading to an inappropriate profile under the sentencing guidelin es, including Mr. Wallgren’s allegation of misuse of immunized testimony, or if the strategic decision to not address these issues was misplaced, it was incumbent upon Mr. Wallgren to bring this to the attention of his attorney and the court . These were matters within his singular knowledge. Instead, he told the court und er oath he had reviewed the report with his attorney and had no objection to it . “The truth and accuracy of [defendant’s] statements are regarded as conclusive in the absence of a believable reason justifying departure from their apparent tru th.” United States v. Bambulas, 571 F.2d 525, 526 (10th Cir. 1978). Finding no deficient performance under Strickland, we need not address the prejudice component of the test for effectiveness o f counsel. There being no demonstration of the denial of a constitutional rig ht, reasonable jurists could not debate whether Mr. Wallgren ought to proceed furthe r. Accordingly, we deny the request for a certificate of appealability and DISMISS the case.

Entered by the Court: TERRENCE L. O’BRIEN United States Circuit Judge