UNITED STATES COURT OF APPEALS TENTH CIRCUIT

JAMES K. CONKLETON, Petitioner–Appellant,

v. KEVIN MILYARD, Warden, Sterling Corr. Facility; ARISTEDES ZAVARAS, Executive Director, Colo. Dept. Of Corrections; and JOHN W. SUTHERS, The Attorney General of the State of Colorado, Respondents–Appellees. No. 10-1257 (D.C. No. 1:08- CV-02096-ZLW) (D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , EBEL , and LUCERO , Circuit Judges.

James Conkleton, a state prisoner pro ceeding pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s dismissal of his 28 U.S.C. § 2254 petition. We deny a COA and dismiss the appeal.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 3, 2010
Elisabeth A. Shumaker Clerk of Court- 2 - I Conkleton was charged in El Paso County District Cour t with five felony counts of sexual assault on a child, based on the near daily rape of his stepdaughter over the course of two years. Pursuant to a plea agreement, Conkle ton pled guilty to Count One, which charged that he sexually assaulted hi s stepdaughter during Ju ly 1997, when she was less than fifteen years of age. The plea ba rgain stipulated that the sentencing statutes that were in force on November 1, 1998, w ould apply and, therefore, the trial court amended Count One by interlineation at senten cing to reflect a date of December 1998. The prosecution agreed to dismiss the remaining counts , to dismiss a misdemeanor violation of a restraining order, and to fore go charging Conkleton with additional counts of sexual assault against his biological daughte r. The parties agreed that the sentence was to be open to the court and could range from twenty years’ probation to life imprisonment. On March 19, 2001, the trial court sentenced Conkleton to an indeterminate sentence of ten years to life in the Colorado Depart ment of Corrections. On April 16, 2002, Conkleton filed a pr o se post-conviction motion pursuant to Colo. R. Crim. P. 35(c), which the trial court denied, and he appealed. On June 10, 2004, the Colorado Court of Appeals remanded be cause the trial court had failed to make adequate findings concerning Conkleton’s claims. See People v. Conkleton , No. 02CA1222 (Colo. App. June 10 , 2004) (unpublished). On rema nd, the trial court held an evidentiary hearing and denied the moti on in a written order dated May 17, 2005. Conkleton appealed and the Colorado Court of Appeals affirmed. See People v.- 3 - Conkleton , No. 05CA1377 (Colo. App. Dec. 6, 2007) (unpublished), cert. denied No. 08SC56 (Colo. Apr. 7, 2008). On September 29, 2008, Co nkleton filed a pro se 28 U.S.C. § 2254 petition in Colorado federal district court. He raised three grounds for relief: (1) his counsel was ineffective; (2) his due process rights were violated by the amendment of the charging document; and (3) his expulsion from sex offe nder treatment for failure to admit his guilt violated his Fifth Amendment rights. The district court construed the ineffec tiveness claim to contain six subparts: (a) counsel failed to obtain a privat e investigator; (b) counsel failed to explain the penalties as to each separate count, but rather spoke in terms of positions of trust, the lifetime senten cing act, and pattern of abuse; (c) counsel sent a letter to Conkleton setting out the indeterminate sentencing consequences of counts one, two, thr ee, and five, but failed to explain the sentencing consequences of count four ; (d) counsel failed to object to an amendment of the information as to the date of the offense to which Conkleton had agreed to plead gui lty; (e) counsel did not present a psychological expert at the sentencing hearing, and instead, used money Conkleton had provided to retain this expert as part of counsel’s fees; and (f) counsel did not argue at sentenci ng that someone other than Conkleton could have caused the pregnanc y of Conkleton’s daughter. Conkleton v. Milyard , No. 08-cv-02096-BNB, 2009 WL 440929, at *2 (D. Colo. Feb. 17, 2009)(unpublished). The district court dismissed several of Co nkleton’s claims for failure to exhaust. Claims 1(b) and 1(c), howeve r were denied on the merits; the district court concluded that Conkleton had failed to meet the prejud ice standard of Strickland v. Washington , 466 U.S. 688 (1984), as applied to guilty pleas by Hill v. Lockhart , 474 U.S. 52, 58 (1985).- 4 - Conkleton filed a timely application for a COA with this court. He appeals only the rejection of his ineffectiveness claims on the merits.
II Conkleton did not receive a COA from the di strict court, and he may not appeal the district court’s decision unless we grant a COA. 28 U.S.C. § 22 53(c)(1)(A). He may not obtain a COA for claims rejected on th e merits unless he shows “that reasonable jurists could find the district court’s assessme nt of the claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Conkleton contends: (1) that the state c ourts failed to apply the correct prejudice test to his ineffectiveness claims; (2) that he presented “objective evidence” of prejudice; and (3) that the state court’s prejudice inqu iry “should have focused on how counsel’s deficient performance effected [sic] [his] right to make an informed decision, not on whether he would have pr evailed at jury trial.” 1 Because Conkleton proceeds pro se, we construe his filings liberally. See Haines
v. Kerner , 404 U.S. 519, 520-21 (1972). However, we do no t “assume the role of advocate for the pro se litigant. The broad re ading of the plaintiff’s complaint does not

1 Conkleton also attempts to incorpor ate by reference arguments made in his filings with the district court. Such incorporation by refere nce is disfavored under Tenth Circuit Rule 28.4. “If the defendant belie ves these arguments unworthy of separate presentation, then the court believes them unw orthy of further consideration.” Glad v. Thomas Cnty. Nat’l Bankshares Inc. , No. 87-1299-C, 19 91 WL 201186, at *4 (D. Kan. Sept. 10, 1991), aff’d , No. 91-3313, 1992 WL 314976 (10th Cir. Oct. 20, 1992) (unpublished).- 5 - relieve the plaintiff of the burden of allegi ng sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon , 935 F.2d 1106, 1110 (1 0th Cir. 1991). Liberally construing his arguments on appe al, we determine that Conkleton seeks review of the district court’s Strickland /Hill prejudice analysis. “Claims of ineffective assistance of couns el raise mixed questions of law and fact” and are reviewed de novo, gr anting deference to underlying findings of fact. Miller v. Champion , 262 F.3d 1066, 1071 (10th Cir. 2001). To prevail on his ineffective assistan ce of counsel claim, Conkleton bears the burden of proving that: (1) counsel failed to provide reasonably effective assistance because particular acts or omissions of coun sel fell outside the wide range of reasonably competent assistance demanded of attorneys practicing criminal law; and (2) the deficient performance prejudiced the defense. Strickland , 466 U.S.at 691-92. Pursuant to Hill , 474 U.S at 57, this test applies in the context of guilty pleas. We do not reach the question of whethe r Conkleton’s counsel was ineffective, because it is clear Conkleton suffered no prejudice. Cf. Strickland , 466 U.S. at 697. [A] prisoner challenging a guilty plea because of ineffective assistance satisfies the prejudice inquiry by showing that the constitutionally ineffective performance ‘affected the outcome of the plea process

. In other words . . . that there is a reasonabl e probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Miller, 262 F.3d at 1072 (quoting Hill , 474 U.S. at 59). Under Miller , in assessing “whether a petitioner would ha ve changed his plea, and therefore whether he was- 6 - prejudiced,” considerable weight is given to the strength of the prosecution’s case. 262 F.3d at 1074. For the reasons articulated by the district court, we find that Conkleton has failed to meet his burden of estab lishing a reasonable probability that, but for his counsel’s alleged error he would not have pled guilty . Neither: (1) his counsel’s failure to accurately explain the penalties as to each se parate count, nor (2) his counsel’s omission of the sentencing consequences of Count Fo ur represents a but-for cause for Conkleton’s guilty plea. As found by the district court, as well as the state trial court and Court of Appeals, the record strongly supports the conclusion that Conkleton would have pled guilty even absent these alleged deficiencies by his couns el. The evidence agai nst Conkleton on all five counts was extremely strong and includ ed: (1) eyewitness test imony of the victim; (2) hotel and concert receipts documenting Conkl eton’s assignation with the victim; (3) a recording of phone calls between the victim and Conkleton; (4) th e victim’s ability to describe a peculiar feature of Conkleton’s ge nitalia; and (5) the victim’s pregnancy and subsequent abortion. Becaus e the strength of the prosecution’s case provides strong circumstantial evidence as to whether a de fendant would have changed his plea—and was therefore prejudiced—the evidence against Co nkleton strongly militates against a finding of prejudice. See Miller , 262 F.3d at 1074. Conkleton’s own testimony at the evidentia ry hearing indicates that he believed the prosecution’s case against him was strong. He testified that he agreed with his- 7 - counsel’s assessment that the prosecution’s evidence was sufficient to convict him on all charges. It is also clear from the reco rd that Conkleton’s primary objective was eligibility for probation or comm unity correction and the avoida nce of a prison sentence. Yet, given the likelihood of conviction on all counts, whic h would have resulted in a mandatory minimum prison sentence of ten years, the only means to achieve this outcome was to enter into a pl ea agreement with the government . And the only plea offer from the government carried lifetime s upervision, including possible lifetime incarceration. When Conkleton entered into the plea agreement, prior to its amendment, he was fully aware that the agreement entailed the possibility that the judge might sentence him to probation, but might also sent ence him to lifetime incarceration. Thus, because Conkleton’s objective was avoidanc e of a prison sentence and by his own estimation he was likely to be convicted of all charges at trial and sentenced to a mandatory term of imprisonment, he opted for the plea agreement. Conkleton has not shown a reasonable pr obability that his a ttorney’s erroneous advice on the sentences attached to individua l counts affected his decision to plead guilty and has therefore failed to establish that r easonable jurists would debate his claim of ineffective assistance of counsel. Cf. Slack , 529 U.S. at 484.
III For the forgoing reasons, we DENY a COA and DISMISS the appeal. Because Conkleton has not advanced a reasoned, non-frivolous argument on appeal, we also DENY his motion to proceed in forma pauperis. See DeBardeleben v. Quinlan , 937 F.2d- 8 - 502, 505 (10th Cir. 1991).

Entered for the Court

Carlos F. Lucero Circuit Judge