The HONORABLE SCOTT O. WRIGHT, United States District Judge for the 1 Western District of Missouri.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-4309

___________ Miguel Delgado, * * Petitioner - Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. United States of America, * * Defendant - Appellee. *

___________ Submitted: May 13, 1998 Filed: December 7, 1998

___________ Before BEAM, LOKEN, and MURPHY, Circuit Judges.

___________ LOKEN, Circuit Judge.
In Apr il 1993, a jury convicted Miguel Delgado of possession with intent t o distr ibute cocaine and aiding and abetting in violation of 18 U.S.C. §§ 841(a)(1) , 841(b)(1)(A), and 2. Delgado did not appeal. In 1996, he filed motions for post

co nvictionrelief under 28 U.S.C. § 2255, claiming ineffective assistance of tria l counsel and a right to be resentenced under the new “safety valve” provision i n U.S.S.G. § 5C1.2. The distric t court denied both motions. Delgado appeals, arguing 1-2-

the cou rt erred in denying his claims of ineffective assistance without an evidentiary hearing, and that he is ent

itled to a reduced sentence under the safety valve. We deny as untimely the government’s motion to dismiss the appeal and affirm.

I.
In November 1992, local drug dealer Daniel Bebemeyer was arrested attempting to sell two kilograms of cocaine to an undercover agent in a Kansas City hotel roo m while Delg ado waited outside in the hotel parking lot with the remaining thre e kilograms of the five kilogram transaction. Steve Deleon, a California friend o f Bebemeyer and Delgado who had brokered the transaction, was arrested later that day. Delgado fle d on foot, making his way back to his home in California where he wa s arrest ed two months later. Bebemeyer and Deleon pleaded guilty and testified tha t Delgado was the supplier for this and earlier cocaine transactions. Numerous FB I agents corroborated various aspects of this testimony with evidence suc h as fingerprints from the car in which the cocaine was found ; records of phone calls between Delgado, Deleon, and Bebemeyer; and Delgado’s Kansas City hotel receipt s from the time of the transaction. Delgado te stified in his own behalf, providing an innocent explanation of why he was in Kansas City wi th Deleon, and denying any knowledge of cocaine sales or the cocaine that was in the car from which he fled.

In this § 2255 proceeding, Delgado argues his lead trial counsel, retaine d attorney Manuel Lopez of Los Angeles, provided constitutionally ineffecti ve assistance. To establish ineffective assistance of counsel under Strickland v. Washington , 466 U.S. 668 (1984), Delgado must prove that attorney Lopez’s performance was deficient , overc oming the strong presumption that defense counsel’s representation fell “within the wide range of rea sonable professional assistance.” Id . at 689. Delgado must also prove prejudice by demonstrating that absent counsel’s errors there is a reasonableWe reject as fundamentally inconsistent with Stricklandand Hill v. Lockhart , 2 28 F.3d 832, 837-39 (8th Cir. 1994), cert. denied , 513 U.S. 1102 (1995), Delgado’ s unsupported assertion that the failure of defense counsel “to put forth any semblance of a defense” is a structural error for which prejudice is assumed.
-3- probability that the result of the proceeding would have been different. Id . at 694. We 2 review these ultimate issues d e novo. See Lawrence v. Armontrout , 31 F.3d 662, 666 (8th Cir. 1994), cert. denied , 513 U.S. 1161 (1995).
Delgado first contends that Lopez failed to develop a “viable theory of defense at trial.” We are unable to review this contention because the record on appea l contains o nly a partial trial transcript that does not include closing arguments o f counsel, the point in the tri al when defense counsel’s theory of the case would usually be best articulated. We deduce from attorney Lopez’s cross examination of D eleon and direct examinat

ion of Delgado that there was in fact a “viable theory” of innocence -- Deleon was a wealthy California entrepreneur, Delgado was a struggling businessman who became acquainted with Deleon while repairing his fancy cars, and Deleon lured the unsusp ecting Delgado to Kansas City to seek out a new business venture, not t o consummate a large drug deal. This claim of ineffective assistance is without merit.
Delgado next argues that attorney Lopez “failed to develop certain exculpatory evidence .” This contention is based upon an affidavit from Delgado’s local tria l counsel , Willard Bunch. In conclusory fashion, Bunch avers that co-counsel Lope z should have developed evidence supporting Delgado ’s testimony on various peripheral issues -- how Delgado traveled to and from Kansas City, whether Delgado wa s intere sted in possible business opportunities in Kansas City, whether money wired to California was intended for someone else, whether Delga do lacked financial resources, that Deleon “was heavily involved in the drug trade,” and that Bebemeyer’s phon e notes might have referred to other employees at Delgado’s place of business. A review of the part ial trial transcript demonstrates that most of what attorney Bunch now says-4-

Lope z should have developed would have been cumulative to what Lopez in fac t presented. Moreover, Bunch’s affidavit does not specify what additional evidence was avail able and notably fails to aver that he urged Lopez to do more at the time of trial. Because Delgado made n o showing of what other witnesses were available, how they would have testified, and why su ch additional evidence would likely have affected the result, he has failed to prove either that counsel’s assistance was ineffective, see Wing v. Sargent , 940 F.2d 1189, 1191 (8th Cir. 1991), or prejudice, see Sanders v. Trickey , 875 F.2d 205 , 210-11 (8th Cir.), cert. denied , 493 U.S. 898 (1989); Stokes v

. Armontrout , 851 F.2d 1085, 1095 (8th Cir. 1988), cert. denied , 488 U.S. 1019 (1989).

Del gado next argues that attorney Lopez failed to adequately prepare Delgado for his trial testimony. The partial trial transcript refutes this claim. Lopez led Delgado through a direct examination in which Delgado told about his business plans with Deleon, Deleon’s expensive house and cars, the reason for Delgado’s trip to Kansas City, and how Delgado came innocently to be in a car with three kilograms of cocaine. Delgado emphatically denied any involvement in illegal drug traf ficking. Unfortunately forhim, h is story was improbable and full of inconsistencies, and the jury chose t o believe Bebemeyer and Deleon. The adverse verdict was not, however, attributable to ineffective assistance by attorney Lopez.
Finally, Delgado argues the district court erred in de nying an evidentiary hearing on the se ineffective assistance claims. A § 2255 “petition can be dismissed without a hearing if (1) the petitioner’s allegations, accepted as true, would not entitle th e petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible or conclusions rather than statements of fact.” Engelen v. United States , 68 F.3d 238, 240 (8th Cir. 1995). We review the denial of an evidentiary hearing for abuse of dis cretion. See Widgery v. United States , 796 F.2d 223, 224 (8th Cir. 1986). Here, Delgado’s assertions of ine ffective assistance
were st ated in conclusory fashion. These assertions were contradicted by attorne y Lopez’s performance as revealed b y the trial transcript. The supporting affidavit from-5-

at torney Bunch lacked inherent credibility and failed to specify what additiona l evidence c ould be developed at an evidentiary hearing. In these circumstances, th e same district judge who tried the case clearly did not abus e his discretion in concluding that Delgado’s ineffective assistance claims are all inadequate on their face. See Payne v. United States , 78 F.3d 343, 347 (8th Cir. 1996); Porcaro v. United States , 832 F.2d 208, 212-13 (1st Cir. 1987).

II.
Delgado a rgues he should be resentenced under U.S.S.G. § 5C1.2, whic h pr ovides that drug offenders should be sentenced in accordance with the applicabl e guideli nes, without regard to any statutory minimum sentence, if they meet stringen t criteria found in 18 U.S.C. § 3553(f)(1)-(5). Delg ado was sentenced on July 26, 1993. The statutory “safety valve,” 1 8 U.S.C. § 3553(f), applies only to “sentences imposed on or after the 10th day beginning after the date of enact ment,” or September 23, 1994. Violent Crime Control and Enf orcement Act, Pub. L. 103-322, § 80001(c), 108 Stat. 1796

. Likewise, the companion Guidelines safety valve, U.S.S.G. § 5C1.2, becam e effect ive September 23, 1994. Favorable guidelines amendments may be used t o reduce an earlier sentence only if such a reduction “is consistent with applicable policy stateme nts issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Th e Comm ission lists Guidelines amendments that may be retroactively applied to lowe r a previous sentence in U.S.S.G. §1B1.10(c). Consistent with Congress’s decision not to make § 3553(f) retroactive, amendment 509 which enacted § 5C1.2 is not listed in § 1B1.10( c). Therefore, § 5C1.2 may not be applied to reduce Delgado’s sentence

. Moreover, even if § 5C1.2 had been in effect at the time of Delgado’s sentencing, we see no indication he satisfied his “burden to show, through affirmative conduct, that he has given the

government truthful information and evidence about the relevant crimes befo re sentencing.” United States v. Weekly , 118 F.3d 576, 581 (8th Cir.), cert

. denied , 118 S. Ct. 611 (1997).-6-

The judgments of the district court dated March 26, 1997, and June 16, 1997. are affirmed.
A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.