* This order and judgment is not binding precedent, e xcept under the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

1 After examining appellant’s brief and the appellate record, this panel has (continued...) 

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

### DEC 16 1999 

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

VINCENT M. LUCERO,

Petitioner-Appellant,

v. ATTORNEY GENERAL FOR THE STATE OF COLORADO; ARISTEDES W. ZAVARAS, Executive Director, Colorado Department of Corrections,

Respondents-Appellees. No. 99-1070 (D.C. No. 97-WM-2259) (D. Colo.)

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and BRISCOE, Circuit Judges.

Petitioner Vincent M. Lucero appeals from the distr ict court’s denial of his habeas corpus petition, filed pursuant to 28 U.S.C. § 2254. Our jurisdiction over this appeal arises under 28 U.S.C. §§ 2291 and 2253. 1 Because appellant’s habeas1 (...continued)

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. -2- petition was filed after the enactment of the Antit errorism and Effective Death Penalty Act of 1996, the certificate of appealabili ty provision created by that Act is applicable to his case. See 28 U.S.C. § 2253(c)(1)(A). The district court denied appellant a certificate of appealability and denied appellant’s request to proceed on appeal in forma pauperis. See Rec. Vol. II, doc. 55 at 2; id. , doc. 57. We grant appellant leave to proceed in forma pauper is. To obtain a certificate of appealability, appellant must demonstrate “a substa ntial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Respondent has not filed a brief in this appeal. “In reviewing a denial of a petition for a writ of habeas corpus, we are generally subject to two different modes of analysi s. If the claim was not heard on the merits by the state court, and the federal d istrict court made its own determination in the first instance, we review the district court’s conclusions of law de novo and its findings of fact, if any, for c lear error. But when reviewing the merits of a claim already decided by the state courts, we are bound to deny relief unless the state court’s decision ‘was contr ary to, or involved an unreasonable application of, clearly established Fe deral law, as determined by the2 In North Carolina v. Alford , 400 U.S. 25 (1970), the Supreme Court held

that where a defendant pleads guilty while still ma intaining his innocence, the plea may still be “the product of a free and ration al choice, especially where the defendant was represented by competent counsel whos e advice was that the plea would be to the defendant’s advantage.” Id. at 31. -3- Supreme Court’ or ‘resulted in a decision that was based on an unreasonably determination of the facts in light of the evidence presented in the State court proceeding.’” LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999) (quoting 28 U.S.C. § 2254(d)) (further citations omitted). The state court’s factual findings are afforded a rebuttable presumption of correctness. See 28 U.S.C. § 2254(e)(1). Appellant plead guilty and was convicted in Colorad o state court on charges of second degree murder and first and secon d degree assault. He entered

an Alford plea, maintaining his innocence of the charges. 2 On direct appeal, the state appellate court affirmed and the state suprem e court denied review. Appellant also filed a state post-conviction motionalleging ineffective assistance of counsel, which was denied after a hearing. Thatdenial was affirmed on appeal and the supreme court again denied review. Appellant then filed for habeas relief in federal district court, raising issues from bothhis direct appeal and postconviction motion, together with other claims. The district court denied his habeas petition because it concluded that many of t he issues he raised were procedurally barred, and the remaining issues lacke d merit.-4-

On appeal, appellant challenges his sentence as unf air and excessive in light of his Alford plea and his self-defense arguments, contends thathis sentence is a fundamental miscarriage of justice, and argues that the sentencing court paid more attention to aggravating factors and less atte ntion to his mitigating claims of self-defense. After careful consideration of these arguments, the record on appeal, and the applicable law, we conclude that th e district court correctly rejected these arguments. We decline to grant appe llant a certificate of appealability on those issues. Appellant also contends that his trial counsel were ineffective with respect to the advice they gave him about parole eligibility. He alleges that his counsel told him he would be eligible for parole after serv ing 50% of his sentence, whereas the applicable law requires him to serve 75 % of his sentence before he is considered for parole. He asserts that, had he kno wn about the 75% requirement, he would have gone to trial rather than plead guilty. Appellant raised this issue in his state post-conviction motion and the state court held a hearing at which his trial counsel testified. The state trial court con cluded that appellant had been properly advised as to parole and that, therefore, he had not demonstrated ineffective assistance of counsel. The district co urt agreed, but also noted that appellant had failed to establish prejudice, as required by Strickland v. Washington , 466 U.S. 668, 693 (1984). Under these circumstan ces, appellant-5-

must demonstrate that but for his counsel’s advice regarding parole eligibility, he would have gone to trial. See Braun v. Ward , 190 F.3d 1181, 1188 (10th Cir. 1999) (citing Hill v. Lockhart , 474 U.S. 52, 59 (1985)). In light of the various factors involved in appella nt’s decision whether to stand trial, we cannot conclude that the required p rejudice has been shown. Appellant faced a strong case on charges of murder and assault, including facts which weighed against his self-defense arguments an d potentially damaging testimony from his co-defendant. He also faced hab itual offender charges which he had tried, unsuccessfully, to have removed. The se charges could have resulted in a life sentence, a possibility appellant wanted to avoid. See Rec. Vol. I, doc. 3, Attachment C at 12, 21, 25-26. Under these circums tances, we conclude that appellant would have plead guilty to the lesser cha rges had he been properly advised by counsel as to parole eligibility. There fore, without consideration whether appellant’s counsels’ performance was defic ient, we agree with the district court that appellant’s ineffective assistance claim lacks merit. See Foster v. Ward , 182 F.3d 1177, 1184 (10th Cir. 1999) (noting thatappellate court may address Strickland performance and prejudice prongs in any order, andneed not address both if appellant fails to satisfy one pron g). Accordingly, we deny appellant a certificate of appealability on this issue as well. See Scoggin v.
Kaiser , 186 F.3d 1203, 1206 n.1 (10th Cir.) (holding the grant of a certificate of-6-

appealability on ineffective assistance claim unnec essary where no prejudice demonstrated), cert. denied , 120 S. Ct. 377 (1999). Appellant raises several issues challenging procedu ral rulings of the district court. He contends that the court did not perform an adequate de novo review of his objections; objects to the use of a magistrate judge and asserts that both the magistrate judges and the district court judge shou ld have been disqualified; challenges the district court’s ruling striking anddisallowing pleadings filed on his behalf by another prisoner; complains that the district court failed to rule on his motions for appointment of counsel or his const itutional challenge to the Prison Litigation Reform Act fee provisions; and co ntends that he was entitled to an evidentiary hearing before the district court. Our review of the record demonstrates that these issues have no merit. In light of the above discussion, we conclude that appellant has not made a substantial showing of the denial of a constitution al right as required by 28 U.S.C. § 2253(c)(2). Therefore, we DENY appellant a certi ficate of appealability and-7-

DISMISS the appeal. Appellant’s motions for appointment of counsel and for disqualification of the district court judge and th e magistrate judges are DENIED. The mandate shall issue forthwith.

Entered for the Court

Stephen H. Anderson Circuit Judge