* This order and judgment is not binding precedent, e xcept under the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

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

### JUN 26 1997 

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

JOSEPH BLAZ SANCHEZ,

Petitioner-Appellant,

v. DUANE SHILLINGER, Warden, Wyoming Department of Corrections State Penitentiary; ATTORNEY GENERAL OF THE STATE OF WYOMING, Respondents-Appellees. No. 96-8038 (D.C. No. 94-CV-017-B) (D. Wyo.)

ORDER AND JUDGMENT *

Before EBEL, HENRY, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Petitioner appeals from the district court’s order dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 225 4. We affirm. Petitioner was convicted of first degree sexual ass ault in Wyoming state court. With different counsel, he appealed to the Wyoming Supreme Court. That court affirmed the conviction. See Sanchez v. State , 751 P.2d 1300, 1309 (Wyo. 1988). Thereafter, petitioner filed for state post -conviction relief alleging, among other things, ineffective assistance of trial and appellate counsel. The state court (1) ruled that the claim of ineffective assistance of trial counsel should have been raised on his direct appeal and therefore was proce durally barred and (2) denied the claim of ineffective assistance of appellate co unsel on the merits, finding it vague and conclusory. The Wyoming Supreme Court de nied petitioner’s petition for a writ of review. Subsequently, petitioner sought habeas corpus relie f in federal district court, raising the ineffective assistance of counse l claims. The district court determined the ineffective assistance of trial coun sel claim was procedurally barred and the ineffective assistance of appellate counsel claim was meritless. Petitioner appealed. This court reversed and reman ded, concluding the ineffective assistance of trial counsel claim was n ot procedurally barred because “a failure to raise a claim of ineffective assistan ce of trial counsel on direct appeal will not prevent federal habeas corpus revie w of the claim.” Sanchez v.1 Petitioner filed his notice of appeal on April 29, 1996, and the district court

granted a certificate of probable cause on May 10, 1996. The Antiterrorism and Effective Death Penalty Act of 1996, signed into law on April 24, 1996, provides, however, that an appeal may not be taken to the cou rt of appeals from a district court’s ruling on a § 2254 petition unless a “circu it justice or judge” issues a “certificate of appealability,” determining the pet itioner has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(1), (2). The district court, which has authority to issue certif icates of appealability, see Houchin v. Zavaras , 107 F.3d 1465, 1469 (10th Cir. 1997), should have applied § 2253 as amended by the Act. Because the standardfor obtaining a certificate of appealability under the Act and the standard for ob taining a certificate of probable cause under the law as it existed before enactment of the Act are the same, see Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996), cert. denied , 117 S. Ct. 746 (1997), we conclude the district court in effect gr anted a certificate of appealability. Thus, we consider this appeal on it s merits.

-3- Shillinger , 59 F.3d 179, 1995 WL 368299, at **1 (10th Cir. 19 95) (citing Breechen v. Reynolds , 41 F.3d 1343, 1363-64 (10th Cir. 1994), and recog nizing district court did not have benefit of Breechenat time it rendered its decision) (table). Also, this court directed that the distri ct court reconsider the ineffective assistance of appellate counsel claim on remand. S ee id. Upon remand and after considering the merits of the claims, the magistrat e judge issued a report and recommendation recommending dismissal of the petiti on. The district court adopted the magistrate judge’s report and dismissedthe petition with prejudice. 1 Petitioner continues to argue on appeal that his tr ial counsel was ineffective at both trial and sentencing because he (1) failed to interview petitioner before trial; (2) failed to obtain a transcript of the pre liminary hearing; (3) failed to-4-

interview certain witnesses; (4) failed to intervie w the victim until three weeks before trial and then did so in the presence of the district attorney; (5) failed to request an instruction on a lesser included offense ; (6) failed to obtain, review, and investigate the contents of the presentence rep ort prior to the day of the sentencing hearing; (7) failed to object to imprope r questions by the prosecutor at sentencing; (8) failed to pursue pre-trial motions to suppress or dismiss based upon statements obtained as the result of his illeg al arrest and upon failure to conduct a medical examination of the victim; and (9 ) played the tape of the interview of the victim to the jury. Petitioner co ntends that these alleged deficiencies were not tactical decisions made by co unsel as part of a strategic plan and that there is a reasonable probability that the evidence would have supported a conviction of a lesser degree of sexual assault. Petitioner further asserts that the sentencing decision might have been different i f psychiatric testimony had been presented and the improper sentencing consider ation of the probation officer had been kept out of the sentencing hearing. Petit ioner also continues to argue on appeal that his appellate counsel was ineffective f or failing to raise an issue of ineffective trial counsel on appeal. We review claims of ineffective assistance of couns el de novo. See Hoxsie v. Kerby , 108 F.3d 1239, 1245 (10th Cir. 1997). After revi ewing the briefs, the magistrate judge’s report and recommendation, the d istrict court’s order, the-5-

district court record, and relevant case law, we ag ree with the district court’s denial of habeas corpus relief for substantially th e same reasons stated by the magistrate judge’s report and recommendation filed March 6, 1996, and the district court’s order entered on the docket April 2, 1996. Specifically, we note that many of petitioner’s conclusory allegations ar e contradicted by the record and none of them meet the Strickland v. Washington , 466 U.S. 668, 687 (1984), standards requiring proof that his trial counsel’s conduct was deficient and that any deficient conduct prejudiced his defense. We a lso note that petitioner’s appellate counsel raised four issues on direct crim inal appeal, see Sanchez , 751 P.2d at 1301, 1303-09, and clearly exhibited pr ofessional efforts to raise the best issues. Petitioner also argues that the district court erre d in failing to determine whether an evidentiary hearing was required. Altho ugh the district court determined that his allegations were conclusory, pe titioner believes that he could prove his allegations if he was afforded an evident iary hearing. To be entitled to an evidentiary hearing, petitioner must allege fact s which if proven would entitle him to relief. See Hatch v. Oklahoma , 58 F.3d 1447, 1471 (10th Cir. 1995). “[T]he allegations must be specific and particulari zed, not general or conclusory.” Id. We agree with the district court that the majority of petitioner’s allegations are conclusory and the remainder are contradicted b y the record. Because-6-

petitioner did not assert any facts which if provenwould have established he received ineffective assistance of counsel, the dis trict court therefore did not err in failing to hold an evidentiary hearing. Petitioner finally argues that a less deferential s tandard of appellate review should be applied to factual determinations based o n documentary evidence rather than on live testimony. “This court has held that findings by a district court and magistrate based merely upon their review of the st ate record are . . . subject to this court’s independent review of the record . . . .” Cunningham v. Diesslin , 92 F.3d 1054, 1062 n.6 (10th Cir. 1996). We have r eviewed the record in this case, and we conclude the district court did not err in determining petitioner is not entitled to habeas corpus relief. The judgment of the United States District Court fo r the District of Wyoming is AFFIRMED. Petitioner’s request in his r eply brief for appointment of counsel is DENIED. Petitioner’s motion to enlar ge the record to include the state court trial and sentencing transcripts, whichwere a part of the district court record and which were reviewed by the district court, is GRANTED. Respondents’ motion to strike portions of petitione r’s reply brief and appendices is GRANTED to the extent petitioner is attempting t o raise new issues in his reply brief and submit exhibits not before the district c ourt. See Aero-Medical, Inc. v.-7-

United States , 23 F.3d 328, 329 n.2 (10th Cir. 1994) (court of appeals will not review evidence not before district court). The ma ndate shall issue forthwith.

Entered for the Court

Robert H. Henry Circuit Judge