* This order and judgment is not binding precedent, e xcept under the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

### NOV 16 1998 

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

Plaintiff-Appellee,
v. DWIGHT CHRISTIAN VACARRO,

Defendant-Appellant. No. 97-6403 (D.C. No. CIV-97-567-R & CR-89-73-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO, BARRETT, and KELLY , 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.1 Allen v. United States , 164 U.S. 492 (1896). -2- Defendant Dwight Christian Vaccaro, proceeding pro se, appeals the district court’s denial of his motion to vacate, se t aside or correct sentence, filed pursuant to 28 U.S.C. § 2255. He requests issuance of a certificate of appealability, contending that his trial and appell ate counsel provided ineffective assistance, and therefore, his convictions for poss ession with intent to distribute cocaine and the manufacture of cocaine are constitutionally infirm. Defendant first claims his appellate counsel provid ed ineffective assistance because (1) he did not raise the issue of a comprom ise verdict in the direct criminal appeal, (2) he did not appeal any of the i ssues included in a list of twenty possible appellate issues formulated by defendant’s trial attorney, and (3) he did not raise on appeal the issue of four notes sent by the jury and the Allen 1 charge given by the trial court. Contrary to defendant’s claim, the compromise verdict issue was addressed in defendant’s direct appeal. See United States v. Vaccaro , No. 89-6317, 1991 WL 204945, at **2 n.1 (10th Cir. Oct. 11, 1991) (“This argument is meritless.”). The remaining two issues were not raised in defendant’s direct appeal. Therefore, defendant must show cause and prejudice for failing to raise them. See United States v. Cook , 45 F.3d 388, 392 (10th Cir. 1995). Constitutiona lly ineffective assistance of counsel can satisfy the c ause and prejudice requirement.-3-

See id. To establish that counsel provided ineffective as sistance, a defendant must show both that his attorney’s representation w as deficient and that the attorney’s substandard performance prejudiced him. See Strickland v. Washington , 466 U.S. 668, 687 (1984). “When a defendant alle ges his appellate counsel rendered ineffective assistance by failing to raise an issue on appeal, we examine the merits of the omitted issue.” Cook , 45 F.3d at 392. Although defendant claims there were other meritori ous issues that should have been included in his direct appeal, he does no t identify any issues or attempt to demonstrate their merit. Therefore, defendant h as not met the requirements of 28 U.S.C. § 2255. Cf. Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (unsupported conclusory allegations insufficient to state claim). Defendant next alleges his appellate attorney shoul d have argued that one of the four notes sent by the jury during deliberat ions indicated that they had not paid attention to the evidence and were therefore i ncompetent to convict him. He also contends that the Allen charge given by the trial court improperly coercedthe jury to reach a verdict. We have carefully reviewe d all of the notes from the jury as well as the Allen instruction. We conclude that even if appellate c ounsel had raised these issues on appeal, defendant would not have been entitled to any relief. Cf. United States v. Reed , 61 F.3d 803, 804-05 (10th Cir. 1995) (finding no abuse of discretion in Allen instruction or handling of jury note). Accordingly,-4-

defendant has not established ineffective assistance of appellate counsel. See Medina v. Barnes , 71 F.3d 363, 367 (10th Cir. 1995) (“Because these claims were meritless, any allegation that appellate counsel wa s ineffective for failing to raise them on direct appeal must also fail.”). Defendant also asserts that his trial counsel provi ded ineffective assistance because he did not solicit a plea agreement, but in stead recommended that defendant proceed to trial. He also complains thathis attorney failed to inform him of the sentencing possibilities. He maintains that in a case of this complexity, there would have been plea discussions. The government informed the district court that its file did not contain any documents indicating that plea discussions were held. Defendant’s claim is based on speculation; he has failed to establish a reasonable probability that the gove rnment was willing to negotiate a guilty plea or that his sentence would have been different if he had entered a guilty plea. See United States v. Boone , 62 F.3d 323, 327 (10th Cir. 1995). Therefore, defendant has failed to demonstrate thathe was prejudiced by his attorney’s representation, and his ineffective assi stance of trial counsel claim must fail. The district court did not abuse its discretion by not holding a hearing because the motion, files, and records conclusivelyshow he is not entitled to relief. See 28 U.S.C. § 2255; United States v. Lopez , 100 F.3d 113, 121 (10th-5-

Cir. 1996) (district court’s decision not to hold h earing in proceedings under § 2255 reviewed for abuse of discretion). Defendant’s “Judicial Notice of Adjudicative Facts” is DENIED. Defendant’s request for a certificate of appealabil ity is DENIED. The appeal is DISMISSED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge