* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This 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. 

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

### JUL 3 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAUL D. HOLMES,

Petitioner - Appellant,

v. WYOMING DEPARTMENT OF CORRECTIONS; STATE PENITENTIARY WARDEN; WYOMING ATTORNEY GENERAL,

Respondents - Appellees. No. 96-8113 (D. Ct. No. 95-CV-59-B) (D. Wyo.)

ORDER AND JUDGMENT *
Before TACHA, BALDOCK, and LUCERO, Circuit Judges.

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. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument.1 It should be noted that the Supreme Court’s decision overrules our decision in

Lennox v. Evans , 87 F.3d 431 (10th Cir. 1996), cert. denied , 117 S. Ct. 746 (1997) to the extent that Lennoxheld that the AEDPA provisions applied to §§ 2254 and 2255 cases filed prior to the AEDPA’s effective date. - 2 - Pro se petitioner Holmes appeals from an order of t he district court denying relief in petitioner’s petition for a writ of habea s corpus brought pursuant to 18 U.S.C. § 2254. Petitioner alleges that the distric t court erred in numerous respects. We affirm. As a preliminary matter, it should be noted that itis unnecessary for a defendant to obtain a certificate of appealability to prosecute his appeal. The Supreme Court recently held that the AntiTerrorism and Effective Death Penalty Act of 1996 (AEDPA) amendments to 18 U.S.C. § 2253 which imposed the requirement of a certificate of appealability do no t apply to cases filed prior to the statute’s effective date. See Lindh v. Murphy , No. 96-6298, 1997 WL 338568 (U.S., June 23, 1997). 1 The state concedes in its response brief that thi s § 2254 petition for habeas corpus was filed on March 17, 1 995. Thus, this case was pending at the time of the effective date of the AE DPA. The State of New Mexico argues in its response brie f that petitioner’s claims have been procedurally defaulted in the stat e courts of New Mexico and, therefore, that federal habeas corpus relief is unavailable to him. Coleman v. Thompson , 501 U.S. 722 (1991). The record is clear that pe titioner failed to raise- 3 -

any of the issues advanced in this case in his dire ct appeal or in any state postconviction actions. Petitioner attempts on appeal to escape dismissal u nder the standards enunciated in Coleman , id ., by arguing that the district court erred in fail ing to conclude that both trial and appellate counsel prov ided ineffective assistance of counsel in the proceedings relating to his underlyi ng plea of guilty, sentencing, and appeal. Petitioner further alleges that the tr ial court erred in numerous respects regarding his competency to enter the guil ty plea, to understand the charges against him, and to voluntarily and knowing ly enter into the guilty plea. Petitioner further alleges that he was never inform ed of his right to appeal. The district court entered summary judgment in favor of the United States on all claims. Petitioner’s arguments are without merit. The reco rd makes clear that both trial and appellate counsel rendered effective assi stance of counsel at the guilty plea proceeding and on appeal. In order for a peti tioner to show that either his trial or appellate counsel was deficient he must sh ow that counsel’s conduct fell outside a wide range of reasonable professional ass istance and that petitioner was prejudiced by the failures of counsel. Strickland v. Washington , 466 U.S. 668, 687 (1984). Petitioner has made no such showing. We have reviewed the transcript of the guilty plea proceeding and the en tire court record related to that- 4 -

proceeding and to petitioner’s appeal. We agree wi th the magistrate judge and the district court that there is no basis for finding t hat either trial or appellate counsel failed to provide effective assistance to petitione r at each stage. Attempting to bolster his ineffective assistance of counsel claims, petitioner raises a number of issues relating to the voluntari ness of his plea and to his competency to enter the plea. The record refutes p etitioner’s allegations. The state district court inquired thoroughly about the factual basis for petitioner’s guilty plea. Further, the state court relied on atleast two separate psychologists in making the determination that petitioner’s plea was knowingly and voluntarily made and that it was entered only after consultatio n with counsel. The record in this case contains no evidence that the factual det erminations in the state courts are not fairly supported by the record. We furtherfind no evidence that there were any “psychological ploys” employed in obtainin g petitioner’s confession or guilty plea. Petitioner has failed to show either cause or prejudice to him for his failure to pursue remedies available to him in the state courts.- 5 -

For substantially the reasons given by the magistrate judge and adopted by the district court, we affirm the order of the dist rict court granting respondents motion for summary judgment, denying post-convictio n relief, and dismissing the petition. AFFIRMED. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge