* This order and judgment is not binding precedent, except under the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

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

### JUN 6 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LYNNETTE BERRY-GURULE, Petitioner - Appellant, v. PENNY LUCERO, Warden; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO Respondents - Appellees. No. 99-2112 (D.C. No. 97-1156 MV/JHG) (Dist. New Mexico)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL , and HENRY , Circuit Judges.

Petitioner-Appellant Lynette Berry-Gurule (“Berry-G urule”) sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alle ging that her trial counsel was ineffective and that for this reason her 1996 guilty plea in New Mexico state court was involuntary and unintelligent. Adopting the fi ndings of the magistrate judge, the district court denied Berry-Gurule’s motion foran evidentiary hearing and petition for a writ of habeas corpus.1 Berry-Gurule allowed her two-year-old son to ingesta non-fatal dose of

crack cocaine and her eleven-month-old daughter to ingest a fatal dose. The cocaine was apparently accessible to the children i n Berry-Gurule’s home. - 2 - This court granted a certificate of appealability i n this case on December 13, 1999 pursuant to 28 U.S.C. § 2253(c)(1), and we therefore have jurisdiction to hear this appeal. We AFFIRM the judgment of the di strict court.
BACKGROUND On October 17, 1995, Berry-Gurule was charged by in dictment in New Mexico state court with: (1) five counts of child a buse; 1 (2) one count of trafficking cocaine; and (3) one count of tampering with evidence. On November 22, 1995, Berry-Gurule was further charged by indic tment with: (1) five counts of fraudulent use of a credit card; (2) five counts of fraudulent signing of credit cards or sales slips; (3) one count of conspiracy t o commit the fraudulent use of a credit card; and (4) one count of contributing to t he delinquency of a minor, all in violation of New Mexico law. These cases were cons olidated, and Berry-Gurule pled guilty, pursuant to a plea agreement, to: (1) two counts of child abuse; (2) one count of trafficking cocaine; and (3) two count s of fraudulent use of a credit card without consent of the cardholder. The state district court sentenced BerryGurule to eighteen years for first-degree child abu se; nine years for third-degree child abuse; three years for trafficking cocaine; a nd three years for the credit card fraud convictions. The court mitigated the eightee n-year sentence to fifteen years- 3 -

and concluded that the three-year sentence for traf ficking cocaine would run consecutive to that sentence. The court further pr ovided that the remaining sentences would all run concurrently to the child a buse and drug trafficking sentence, yielding a total prison sentence of eight een years. Berry-Gurule filed a state petition for a writ of h abeas corpus on May 14, 1997. In the petition, she alleged that she was de nied effective assistance of counsel because her trial counsel, Anthony Ayala, “ failed to adequately counsel Petitioner on the consequences of her plea of guilty, and her plea was therefore not entered knowingly, voluntarily, and intelligent ly.” The New Mexico district court denied Berry-Gurule’s petition the same day i n a conclusory order. The district judge who signed the order was W. John Bre nnan, the same judge who had received Berry-Gurule’s plea and sentenced Berry-Gurule. The district court (again, Judge W. John Brennan) filed an amended ord er denying the petition on July 24, 1997. With respect to the ineffective ass istance of counsel claim, the amended order stated: Petitioner’s first issue states that she was deniedeffective assistance of counsel. She argues that counsel did not review th e consequences of the plea and she was given the last page of the agreeme nt and told to sign it. Petitioner entered into this plea on the record and stated to the court that she read and understood the terms of the plea. At the time of the plea Petitioner was represented by counsel and informed by the court of the rights she would be waiving by her acceptance of th e plea agreement. There was no indication from Petitioner or counsel that the plea or its terms were not understood. Due to the serious nature of the charges and the length of the sentence the court spent additional t ime on the record, making2 Much of the parties’ briefs are dedicated to a disc ussion of the meaning of (continued...) - 4 - sure the plea was free and voluntary and that the P etitioner understood the consequences. Berry-Gurule filed a petition for writ of certiorar i with the New Mexico Supreme Court, and that court denied the petition on August12, 1997. Berry-Gurule filed her federal habeas petition on A ugust 28, 1997. In her brief, she argued that she was denied her right to effective assistance of counsel, resulting in an involuntary and unintelligent guilty plea, when her attorney failed to investigate her case or to communicate with her regarding the charges filed against her, possible defenses to those charges, an d the consequences of her guilty plea. The magistrate judge reviewing her petition recommended that the district court deny the petition, reasoning that Berry-Gurul e had failed to make a showing under either prong of Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) . Adopting the magistrate judge’s findings, the d istrict court denied the petition for writ of habeas corpus and t he motion for an evidentiary hearing. Berry-Gurule appeals the judgment of the district court. The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies to Berry-Gurule’s case because she filed her § 2254 pe tition after April 24, 1996.
See Hooks v. Ward , 184 F.3d 1206, 1213 (10th Cir. 1999). The standa rd of review under AEDPA 2 is set forth at 28 U.S.C. § 2254(d)(1)-(2), which provides:2 (...continued)

§ 2254(d)(1)-(2). (See Aple. Br. at 5-9; Aplt. Rep. Br. at 1-10.) Subseq uent to the filing of the briefs in this case, the Supreme Court resolved this issue in Williams v. Taylor , –U.S.–, 120 S. Ct. 1495, 1518-23, –L. Ed. 2d– (20 00). - 5 - An application for a writ of habeas corpus on behal f of a person in custody pursuant to the judgment of a State court shall notbe granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– (1) resulted in a decision that was contrary to, orinvolved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unr easonable determination of the facts in light of the evidence presented in the State court proceeding. In support of her appeal, Berry-Gurule alleges the following facts: (1) Ayala knew that Berry-Gurule had been traumatized b y the death of her child and the injury of her other child; (2) Berry-Gurule tol d Ayala that she had seen a medical doctor regarding her stress and depression, and that she was taking antidepressant and anti-psychotic medication; (3) Berry -Gurule went to Ayala’s office three times in an attempt to discuss her case, but was told that he was too busy to meet with her; (4) when Ayala called to tell Berry- Gurule that he had received a plea offer that could result in an eighteen-year se ntence, she told him that she did not want to accept the plea offer and that she was doing well in treatment; (5) in response to Berry-Gurule’s statement that she did n ot want to accept the plea offer, Ayala told her that he might be able to get her probation; (6) at the end of the conversation, Ayala told Berry-Gurule to be in court the next day, and then- 6 -

hung up on her; (7) Berry-Gurule immediately went t o her lawyer’s office but was told he was unavailable; (8) at the courthouse the next day, Ayala showed her the last page of the plea agreement, told her to sign h er name, and Berry-Gurule did so; (9) Ayala never reviewed the plea agreement wit h Berry-Gurule and she did not review it herself; (10) at the plea hearing, Be rry-Gurule was afraid to tell the judge that she had not reviewed the plea document b ecause she thought the judge would take away her work-release program; (11) Berry-Gurule would not have pled guilty if she had known of the mandatory minim um sentence and been given the opportunity to review the discovery materials i n her case; (12) Berry-Gurule asked Ayala for copies of the discovery materials, but he never reviewed the discovery with her or gave her a copy; and (13) Aya la failed to investigate the case adequately as evidenced by the fact that he re ceived a copy of the discovery materials (including 136 pages of police reports an d medical reports) only six days before Berry-Gurule entered into the plea agre ement. Under AEDPA, this court’s analysis begins with a de termination of whether the habeas petitioner’s claim was “ adjudicated on the merits” by the state court.
See Hooks , 184 F.3d at 1223. We do this because AEDPA’s def erential standard of review only applies where there has been an adju dication on the merits by the state court. “In the absence of a state adjudicati on on the merits we believe we must apply the standard of review that predated the recent amendments to §- 7 -

2254.” Id. Berry-Gurule asserts that this court need not giv e deference to the state court’s determination of the ineffective assi stance of counsel claim pursuant to AEDPA because the state court did not decide Ber ry-Gurule’s claim on its merits. We need not address this issue in order to resol ve Berry-Gurule’s claim of error, however. Even assuming that review of Be rry-Gurule’s claim under preAEDPA standards is appropriate in this case, Berry- Gurule is not entitled to habeas relief, because she has failed to allege fac ts sufficient to support her ineffective assistance of counsel claim. A prisoner alleging ineffective assistance of couns el has the burden of demonstrating both deficient performance on the part of counsel and resulting prejudice. See Strickland , 466 U.S. at 687. The Supreme Court has held thatthis standard also applies in the context of a guilty plea. See Hill v. Lockhart , 474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d (1985) (“ [T]he same two-part standard [set forth in Strickland ] seems to us applicable to ineffective-assistance claims arising out of guilty pleas.”). We cannot grant Berry-Gurule habeas relief in this case because she has failed to meet the second part of the Strickland test by alleging facts that show prejudice. Relying on Hill , this court has explained that “in order to demons trate prejudice, [a state habeas petitioner] . . . must s how that, had he rejected the State’s plea bargain, the outcome of the proceeding s ‘likely would have changed.’- 8 -

Thus, we must determine whether it is likely that ajury would have acquitted . . . [the petitioner of the crime to which he pled guilty].” Miller v. Champion , 161 F.3d 1249, 1256-57 (10th Cir. 1998) (quoting Hill , 474 U.S. at 59); see also Braun v. Ward , 190 F.3d 1181, 1188 (10th Cir. 1999) (reciting same test under AEDPA standard of review); United States v. Kane , No. 98-3241, 1999 WL 448818 (10th Cir. July 2, 1999) (unpublished) (appl ying test in § 2255 proceeding). Berry-Gurule did not allege facts bef ore the district court or in her brief on appeal that would show that she did not ab use her children, that she did not traffic cocaine, or that she did not engage in credit card fraud. Moreover, the evidence in the record indicates that Berry-Gurule committed these crimes and that a jury therefore would not have acquitted her. Under oath, Berry-Gurule told the state district court judge during her plea hear ing that she “neglected to pick up” her boyfriend’s crack cocaine; that she was awa re crack cocaine was in the house; and that she purchased $300 worth of goods u sing a credit card that did not belong to her and that she was not authorized to us e. In addition, the record contains police reports showing that rock cocaine w as located in the home and the backyard and that Berry-Gurule told the paramedics that her daughter had swallowed rat poison even though she knew that the girl had ingested cocaine. The facts of Millerprovide a helpful contrast to this case. In Mille r , this court found that the habeas petitioner was entitled to an evidentiary hearing- 9 -

because he had alleged facts in the petition which, if true, would have allowed a jury to find that the petitioner was guilty of a le sser offense than the offense to which he had pled guilty. See Miller , 161 F.3d at 1258-59. Unlike the petitioner in Miller , Berry-Gurule does not allege facts or present evi dence to show that the outcome in her case had she gone to trial would hav e differed from the guilty plea. In conclusion, because Berry-Gurule cannot show pre judice under Strickland , we conclude that the district court properly deni ed Berry-Gurule’s motion for an evidentiary hearing and her petition for habeas relief. The judgment of the district court is AFFIRMED.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge