* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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.

** The Honorable J. Thomas Marten, District Judge, Uni ted States District Court for the District of Kansas, sitting by design ation. 

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

### OCT 29 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

MICHAEL SMOUSE,

Petitioner-Appellant,

v. DONALD A. DORSEY, Warden, Southern N.M. Correctional Facility; ATTORNEY GENERAL OF THE STATE OF NEW MEXICO,

Respondents, and RON LYTLE, Warden, Southern N.M. Correctional Facility,

Respondent-Appellee. No. 96-2274 (D.C. No. CIV 95-0246 HB/JHG)

(D. N.M.)

ORDER AND JUDGMENT *

Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. In May 1993, petitioner was arrested on thirty counts of criminal sexual penetration and one count of criminal sexual contac t arising from his sexual conduct with his young daughter. In December 1993, petitioner pleaded guilty in state court to four counts of criminal sexual penet ration, and the remaining counts were dismissed. Each of the four counts carried wi th it a mandatory sentence of eighteen years. Petitioner, therefore, faced a pot ential sentence of as little as eighteen years (all sentences concurrent) or as gre at as seventy-two years (all sentences consecutive). Petitioner received a sent ence of thirty-six years. Thereafter, petitioner filed a motion for post-conv iction relief, challenging the voluntariness of his plea and the length of his sentence, which the state courts denied on the merits. Petitioner then filed the pr esent federal habeas petition challenging the voluntariness of his plea. The dis trict court appointed counsel to represent petitioner and held an evidentiary hearin g on petitioner’s claims. Based on the state court record and the evidence adduced at the evidentiary hearing,1 Because petitioner filed the present habeas petitio n in federal court before

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, AEDPA ’s certificate of appealability requirements do not apply to this app eal. See United States v. Kunzman , ___ F.3d ___, No. 96-1310, 1997 WL 602507, at *1 n.2 (10th Cir. Oct. 1, 1997). Rather, we apply the pre-AEDPA certificate of probable cause requirements, which are substantively the same, see Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996), cert. denied , 117 S. Ct. 746 (1997), overruled in part byKunzman , 1997 WL 602507 at *1 n.2. We, therefore, constru e petitioner’s application for a certificate of appealability as a n application for a certificate of probable cause. -3- the district court determined petitioner’s plea was voluntary and denied habeas relief. On appeal, petitioner challenges the voluntariness of his plea on two grounds. First, he argues his counsel was constitutionally ineffective because he failed to investigate potential defenses based on p etitioner’s mental state before advising petitioner to plead guilty. Second, petit ioner contends his counsel gave him false assurances of leniency, which coerced himto plead guilty. Before petitioner can proceed on appeal, he must obtain a certificate of probable cause from this court. 1 We will not grant the certificate absent “a subst antial showing of the denial of an important federal right.” Gall agher v. Hannigan , 24 F.3d 68, 68 (10th Cir. 1994). “Performance by defense counsel that is constitutio nally inadequate can render a plea involuntary.” Romero v. Tansy , 46 F.3d 1024, 1033 (10th Cir. 1995). To establish a claim of ineffective assista nce of counsel, petitioner must-4-

show both that his counsel’s performance “fell belo w an objective standard of reasonableness,” Strickland v. Washington , 466 U.S. 668, 688 (1984), and that his counsel’s deficient performance was prejudicial , id. at 693. To satisfy the “prejudice” prong, petitioner must show “there is areasonable probability that, but for counsel’s errors, he would not have pleadedguilty and would have insisted on going to trial.” Hill v. Lockhart , 474 U.S. 52, 59 (1985). Turning to the first prong of the Stricklandanalysis, we note that “whether counsel’s failure to investigate a possible defense was reasonable may be determined or substantially influenced by the defen dant’s own statements or actions.” Romero , 46 F.3d at 1029 (quotation omitted). Petitioner’ s trial counsel, Scott Curtis, testified at the evidentiary hearing he did not investigate the possibility of defenses based on petitioner’s menta l state because he had no indication such an investigation was warranted. Cu rtis said his conversations with petitioner led him to believe petitioner under stood the charges against him, how the criminal process worked, and that petitione r understood what he had done was wrong and felt great remorse for his actions. Curtis felt petitioner was able to assist with his case, and was not concerned about petitioner’s competence. Curtis also testified that “nothing indicated that [petitioner] had any kind of a mental problem that would provide an insanity or di minished-capacity defense.” R. Vol. II at 15.-5-

While petitioner testified he was very depressed af ter his arrest and he had a hard time completing tasks, his testimony did notundermine Curtis’ assessment. Moreover, the magistrate judge who conducted the ev identiary hearing found Curtis’ testimony “completely credible,” and, to th e extent his testimony conflicted with that of other witnesses, the magist rate judge found Curtis’ testimony “to be the more credible.” R. Vol. I, Do c. 43 at 6. Absent clear error, we must accept those factual findings of the distri ct court based on live testimony presented at an evidentiary hearing. See Romero , 46 F.3d at 1028. Given the circumstances presented to Curtis, petitioner has n ot shown that Curtis’ failure to investigate possible mental health defenses was unr easonable. Nor has petitioner shown how Curtis’ failure to inv estigate prejudiced him. Petitioner has not identified what evidence would l ikely have been uncovered had Curtis obtained a mental evaluation of petitioner b efore the guilty plea, nor has petitioner indicated how this evidence would have s upported a defense to the criminal charges or how it would have altered his d ecision to plead guilty. See id. at 1033; see also Hill , 474 U.S. at 59 (discussing how to assess prejudic e flowing from counsel’s alleged failure to investigate). Curtis did seek a mental evaluation of petitioner b efore the sentencing phase, to see if there were mitigating circumstance s that would support an argument for concurrent sentencing. That evaluatio n revealed petitioner had an-6-

average intelligence, he was “significantly depress ed and worried,” he had “dependent and passive-aggressive tendencies,” and he might have problems with alcohol abuse and dependency. R. Vol. II, Pet. Ex. 2 at 6-7. Petitioner has not suggested any of these findings would be a defense to his criminal acts. Though the testimony at the evidentiary hearing indicated petitioner had engaged in bouts of heavy drinking after the criminal charges were f iled, there is no indication in the record petitioner was drinking on any of the th irty-one occasions he allegedly assaulted his daughter. As to the diagnosis of sev ere depression, Curtis testified depression is not a defense to the crimes charged and it would not have been reasonable to pursue a defense on that basis. We turn, then to petitioner’s second argument on ap peal: that his counsel coerced him to plead guilty by giving him false ass urances of leniency. Specifically, petitioner contends Curtis led him to believe he would receive only eighteen years of incarceration. “A plea may not b e voluntary when an attorney materially misinforms the defendant of the conseque nces of the plea or the court’s probable disposition.” Laycock v. New Mexico , 880 F.2d 1184, 1186 (10th Cir. 1989). “[A]n attorney’s unfair representation of p robable leniency may be found coercive.” Id. Based on the testimony at the evidentiary hearing, the magistrate judge found Curtis did not make any misrepresentations ab out the length of the sentence-7-

petitioner faced if he pled guilty. Our own review of the hearing transcript verifies this finding. Further, even if Curtis hadmade inaccurate sentencing predictions to petitioner, the audio tape of the pl ea hearing reflects the court advised petitioner several times the total length o f his sentence was entirely within the court’s discretion and if the court chos e to make the sentences for all four counts run consecutively, petitioner could rec eive a seventy-two-year sentence. “[N]o prejudice [arises] from counsel’s inaccurate sentence or parole predictions where the court cure[s] the defect by p roviding the proper information.” Lasiter v. Thomas , 89 F.3d 699, 703 (10th Cir.), cert. denied , 117 S. Ct. 493 (1996). Finally, the evidence of record belies petitioner’s present contention that he would not have pleaded guilty to the four counts ha d he realized he would receive a thirty-six-year sentence. Petitioner had admitte d to Curtis the commission of more than four instances of sexual penetration. Al so, Curtis testified petitioner was adamant from the outset that he did not want to go to trial because he did not want to subject his daughter to the criminal proces s. Instead, petitioner “wanted to get this behind him and admit what he had done, and try to fix the wounds that had been done prior to him being charged.” R. Vol. II at 15. These facts make it unlikely that petitioner would have chosen to go to trial on the thirty-one counts-8-

charged, rather than enter a plea of guilty to fourof the charges. See Harvey v. McCaughtry , 11 F.3d 691, 694 (7th Cir. 1993). Based upon our review, we conclude that petitioner has not made “a substantial showing of the denial of an important federal right by demonstrating that the issues raised are debatable among jurists, that a court could resolve the issues differently, or that the q uestions deserve further proceedings,” Gallagher , 24 F.3d at 68. Therefore, the certificate of pro bable cause is DENIED and the appeal is DISMISSED. The m andate shall issue forthwith.

Entered for the Court

J. Thomas Marten District Judge