* This order and judgment is not binding precedent, except under the

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

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

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

### DEC 14 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAMONA MANTHEI, Petitioner - Appellant, vs. J. B. BOGAN; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents - Appellees. No. 99-6235 (D.C. No. CIV-98-436-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges. **
Ms. Manthei, an inmate appearing pro se, seeks to appeal from the denial of her 28 U.S.C. § 2254 habeas petition. We deny a ce rtificate of appealability and dismiss the appeal.- 2 - Background Charged with various state offenses relating to the manufacture of amphetamine, Ms. Manthei pled guilty and was senten ced to serve three concurrent terms of imprisonment: 30 years for con spiracy to commit a felony; 30 years for unlawful manufacture of a controlled s ubstance; and 15 years for racketeering. Judgments were entered in March 1990 reflecting that the state sentences ran concurrently with one another, but ra n consecutively with a 15-year prior federal sentence for drug distribution. Ms. Manthei claims that she pled guilty to state charges based upon an oral plea agr eement with the state prosecutor guaranteeing that both the state and fed eral sentences would run concurrently. She did not challenge her sentences in 1990 because she did not receive a copy of the judgments and believed that t hey reflected her plea agreement. In 1995, Ms. Manthei discovered that her state sent ences were to run consecutively to her federal sentence. She filed amotion for judgment nunc pro tunc with the state district court in April 1996. Her motion was denied and the Oklahoma Court of Criminal Appeals affirmed, holdin g that her claim was procedurally barred. Ms. Manthei then filed a fede ral habeas petition arguing that the state sentence she received was not in accordan ce with the plea agreement. On appeal, she argues ineffective assistance of cou nsel, based partly on the denial- 3 -

of double jeopardy protection. The district court did not act on a certificate of appealability; we thus deem it denied by the distri ct court.

Discussion A. Ineffective Assistance In order to succeed on her ineffective assistance c laim, Ms. Manthei must meet the two part test of Strickland v. Washington , 466 U.S. 668 (1984). First, she must show that counsel’s representation “fell b elow an objective standard of reasonableness,” id. at 688, and second, that she was actually prejudic ed by such representation. Id . at 692. In the context of a guilty plea, this me ans that she “must show that there is a reasonable probability t hat, but for counsel’s errors, [s]he would not have pleaded guilty and would have insisted upon going to trial.” Hill v. Lockhart , 474 U.S. 52, 59 (1985). Ms. Manthei first argues that she was prejudiced byher counsel’s failure to secure a written plea agreement showing that the se ntences were to run concurrently. However, in its September 25, 1997 o rder, the Oklahoma district court specifically found that “[t]here was no such agreement.” In a § 2254 habeas proceeding, a factual determination by a state court is presumed correct, unless rebutted by clear and convincing evidence. 28 U.S. C. § 2254(e)(1). To overcome this presumption, Ms. Manthei relies up on affidavits from her- 4 -

attorney, former husband, and brother in law who we re all present at the time of the alleged agreement. However, there is no eviden ce in the trial records of any such agreement, neither party brought any agreementto the attention of the court, and the contemporaneous notes of Ms. Manthei’s atto rney are at best ambiguous. Moreover, on her Change of Plea form, Ms. Manthei a nswered “No” to the following question: “Has anyone told you that your sentence will run concurrent with any other sentence?” Second, Ms. Manthei points to the supplemental fin dings of the magistrate judge to show that part of the plea agreement was t hat the state would stand moot at sentencing. She claims that this part of the ag reement was breached when the state called witnesses to the stand to recap testim ony already given at the preliminary hearing, and her counsel prejudicially failed to intervene. This argument misinterprets the findings. The magi strate judge found that “relevant portions of the Sentencing Transcript sug gest that the plea agreement with the State was more in the nature of a blind pl ea, and petitioner would simply not draw an objection from the State to the argumen ts made by defense counsel.” Even assuming that there was an agreement not to object to defense arguments, this simply is not violated by the state’s presentation of prior testimony. Ms. Manthei’s conclusory statements without more are in sufficient to show prejudice. Finally, Ms. Manthei claims that counsel erred by t elling the court that the- 5 -

federal and state cases “have never been connected up.” She apparently claims that this allowed the judge to find the cases were “separate” and impose the sentences consecutively. However, because there w as no agreement to run the sentences concurrently, Ms. Manthei cannot show pre judice from this action. Even assuming that Ms. Manthei has established thather plea involved erroneous advice, she has failed to demonstrate a r easonable probability that, but for such advice, she would have pled not guilty and gone to trial. See Hill , 474 U.S. at 60. Although she has made this statement, it is unsupported by the nature of the plea agreement–the state district judge reta ined considerable discretion as to sentencing and could have imposed substantially longer, though concurrent,
state sentences.

B. Double Jeopardy Ms. Manthei maintains that imposing a state sentenc e consecutive to a federal sentence based on the same underlying condu ct is a double jeopardy violation. “It is well established that ‘prosecuti ons undertaken by separate sovereign governments, no matter how similar they m ay be in character, do not raise the specter of double jeopardy as that consti tutional doctrine is commonly understood.’” United States v. Trammell , 133 F.3d 1343, 1349 (10th Cir. 1998) (citation omitted). Like prosecutions, sentences f rom different sovereign- 6 -

governments simply do not raise double jeopardy con cerns, whether imposed consecutively or concurrently. We GRANT the motion to proceed in forma pauperis, D ENY a certificate of appealability and DISMISS the appeal. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge